Unequal Liberty and a Right to Education
Helen Hershkoff & Nathan Yaffe1
This article lays the groundwork for a liberty-based right to quality public schooling. We start
from the premise that Black, Brown, and poor children now and historically have never enjoyed
equal liberty in the United States, and that, for these children, the public school, like the prison,
functions as a site of social control that relies upon confinement and force while failing to fulfill
their pedagogic purpose. In urging a liberty-based argument, we rest on the foundational
principle that the state cannot deprive a person of liberty without a legitimate justification.
Notwithstanding this foundational principle, thousands of children in the United States are
confined in public schools that do not meaningfully educate and instead function as unsafe and
harmful warehouses for the children detained within them. Having first unequally apportioned
educational opportunity, the state then compels certain children to attend carceral schools on
pain of civil or criminal penalties. The confinement experienced by Black, Brown and poor
students within resource-starved, carceral public schools serves to maintain and reproduce raceclass subjugation within a system of racial capitalism.
We argue that, examined within the frame of abolition constitutionalism, the traditional
guarantee of equal liberty is violated if the content and conditions of public schooling relegate
one group of children, because of race and/or class, to sub-standard and unsafe schools,
subjecting them to persistent structural disadvantage. In our view, such a system
unconstitutionally perpetuates the very kind of racial and class caste that the Fourteenth
Amendment aimed to abolish. Moreover, the types of judicial remedies explored to date—which
order the provision of only a minimally adequate education—will, in our view, perpetuate the
constitutional harm, for that level of schooling will entrench children’s lifelong social and
political confinement while exploiting their labor through the caste system created by the
prevailing racial capitalist regime. Rather, the remedy must be that of the children’s release
from the terms of confinement by affording them access to quality schooling, whether through
mobility strategies that allow children to transfer to schools elsewhere or through the state’s
provision of a quality education in the “assigned” school at a level that encourages the
children’s flourishing as an aspect of their equal liberty.

1

Helen Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil
Liberties at New York University School of Law, where she co-directs the Arthur Garfield Hays Civil
Liberties Program. Nathan Yaffe is an immigration attorney and abolitionist. They thank Jordan Berger,
Kelsey Borenzweig, Samantha Bosalavage, Will Hughes, Isaac Kaplan, and Yujung Ryu for research
assistance and Gretchen Feltes for library support. Professor Hershkoff received support from the Filomen
D’Agostino Faculty Research Fund for the preparation of this article.

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In the midst of the COVID-19 pandemic, when carceral confinement was known to
heighten the risk of infection and death,2 the state of Michigan ordered Grace, a Black teenage
girl with hyperactivity disorder, to be detained in a juvenile facility for not completing her online
homework. Released after 78 days, Grace remained on home confinement “with a GPS tether,”
and was told she “must attend school and do schoolwork as directed, though school is not
currently in session.”3 In response to her initial incarceration, community members organized a
social media hashtag: “#FreeGrace.”4 Technology has advanced, but their message echoed an

2

See Brendan Saloner et al., COVID-19 Cases and Deaths in Federal and State Prisons, 324(6)
JAMA 602 (July 8, 2020), available at
https://jamanetwork.com/journals/fullarticle/10.1001/jama.2020.12528 (reporting that the risk of
prisoners’ contracting COVID-19 is 4.6 times that of the general population and the risk of death from the
virus is 2.6 times higher). See also Casey Tolan et al., Inside the Federal Prison Where Three out of
Every Four Inmates Have Tested Positive for Coronavirus, CNN (Aug. 8, 2020), available at
https://www.cnn.com/2020/08/08/us/federal-prison-coronavirus-outbreak-invs/index.html (discussing
rates of infection in prison facilities and the failure of the Trump Administration to deal seriously with the
viral crisis even in low-security facilities).
3

Jodi S. Cohen, “Grace,” the Oakland Co. Teen Detained for Skipping Homework Is Released,
DETROIT FREE PRESS (July 31, 2020), available at
https://www.freep.com/story/news/local/michigan/oakland/2020/07/31/free-grace-oakland-countyprobation-homework-appeal-release/5560282002/ . On August 11, the Michigan judge terminated
Grace’s probation, finding she had made adequate progress. See Jodi S. Cohen, Case Closed: Michigan
Judge Removes Grace, Black Teen Jailed for Not Doing Online Schoolwork, From Probation,
PROPUBLICA ILLINOIS (Aug. 11, 2020), https://www.propublica.org/article/case-closed-michigan-judgeremoves-grace-black-teen-jailed-for-not-doing-online-schoolwork-from-probation#987309. That same
day, body-cam footage of the 2018 arrest of an 8-year-old boy with behavioral and emotional disabilities
at a Key West, Florida elementary school went viral on Twitter. See Jaclyn Peiser, “You’re Going to
Jail”: Body-cam Video Shows an 8-Year-Old Florida Boy Arrested at School, WASH. POST (Aug. 11,
2020), available at https://www.washingtonpost.com/nation/2020/08/11/video-florida-boy-arrested/
(quoting child’s attorney as stating that “[t]his is a heartbreaking example of how our educational and
policing systems train children to be criminals by treating them like criminals”).
4

See Aimee Ortiz, Court Frees Michigan Teen Who Was Held for Skipping Online Schoolwork, N.Y.
TIMES (July 31, 2020), available at https://www.nytimes.com/2020/07/31/us/michigan-teen-homeworkrelease.html?referringSource=articleShare (“People protested in support of the high school student
outside Oakland County Circuit Court in Pontiac, Mich., earlier this month.”).

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NAACP placard from sixty years ago protesting school segregation in St. Louis, Missouri:
“Don’t Treat Our Children Like Prisoners.”5
This article lays the groundwork for a liberty-based right to quality public schooling. Our
argument is explicitly aligned with the ideals of abolition constitutionalism, which, relying on
the emancipatory potential of the Reconstruction Amendments, supports the praxis of ending the
prison-industrial complex and the racial and class subordination that the carceral state
perpetuates.6 The project is one of critique and construction. In particular, we see the
constitutional project of establishing a federal constitutional right to education as one of the
“building blocks” for construction of “the beloved community,”7 or of what Professor Dorothy
E. Roberts, a leading scholar of abolition constitutionalism, has called “a more humane, free, and

5

See Douglas Jay, From the NS Archive—Disunited States: 11 February 1956, Public Opinion
Following the Ban of Racial Segregation in American Schools, NEW STATESMAN (21 July 2020),
available at https://www.newstatesman.com/2020/07/ns-archive-disunited-states.
6

According to a common definition, the prison-industrial complex is “the overlapping interests of
government and industry that use surveillance, policing, and imprisonment as solutions to economic,
social and political problems[,]” which functions to “maintain[] the authority of people who get their
power through racial, economic and other privileges.” What Is the PIC? What Is Abolition?, CRITICAL
RESISTANCE (2020), available at http://criticalresistance.org/about/not-so-common-language/. In 1974,
the North Carolina Prisoners Labor Union used the term “judicial-prison-parole-industrial complex.” See
DAN BERGER AND EMILY K. HOBSON, REMAKING RADICALISM: A GRASSROOTS DOCUMENTARY
READER OF THE UNITED STATES, 1973–2001 xx (forthcoming 2020). The first known use of the term in
its current form was in 1976. FAY HONEY KNOPP ET AL., INSTEAD OF PRISONS: A HANDBOOK FOR
ABOLITIONISTS 181 (Critical Resistance 2002) (1976) (“By identifying the structures and decisionmaking processes, the people and institutions that comprise the prison/industrial complex, we begin to
cast light on some hidden functions of prisons which serve particular interests.”). Its use was popularized
in the 1990s. See, e.g., Mike Davis, Hell-Factories in the Fields: A Prison-Industrial Complex, THE
NATION (Feb. 20, 1995); Angela Y. Davis, Masked Racism: Reflections on the Prison Industrial
Complex, COLORLINES (Sept. 10, 1998).
7

The phrase was coined by Josiah Royce, appeared in Martin Luther King, Jr.’s speech at the end of
the Montgomery bus boycott in 1956, and embraced as well by John E. Lewis. We use the term not as a
religious statement, but as a statement of political faith in the possibility of creating “a just community,”
and of “not merely explicating an unjust social order.” Anthony E. Cook, Beyond Critical Legal Studies:
The Reconstructive Theology of Dr. Martin Luther King, 103 HARV. L. REV. 985, 988 (1990).

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democratic world.”8 Thus, this constitutional project supports the understanding of abolition
constitutionalism as seeking to bring about the presence of “life-affirming institutions,” and to
destroy the carceral infrastructure that instantiates their absence.9
We start from the premise that Black, Brown, and poor children now and historically
have never enjoyed equal liberty in the United States, and that, for these children, public schools,
like prisons, function as a site of social control that relies upon confinement and force while
failing to fulfill their pedagogic purpose.10 In urging a liberty-based argument, we rest on the
foundational principle—one that antedates the Reconstruction Amendments—that the state
cannot deprive a person of liberty without a legitimate justification. Yet thousands of children in
the United States are confined in public schools that do not meaningfully educate and instead
function as unsafe and harmful warehouses for the children detained within them.
We use the word “confined” consciously, for the state’s assignment of Black, Brown, and
poor children to particular public schools is not random or ad hoc. Rather, it begins with the
state’s decision to apportion educational opportunity by districts within limited geographic areas

8

Dorothy E. Roberts, Foreword: Abolition Constitutionalism—The Supreme Court 2018 Term, 133
HARV. L. REV. 1, 12 (2019) [hereafter Abolition Constitutionalism].
9

Haymarket Books, Covid 19, Decarceration, and Abolition: An Evening with Ruth Wilson Gilmore,
YOUTUBE (Apr. 28, 2020), available at https://www.youtube.com/watch?v=hf3f5i9vJNM.
10

See infra Section V. For an early articulation of this view, see CARTER G. WOODSON, THE MISEDUCATION OF THE NEGRO 45 (1933) (“The education of the Negro, then, becomes a perfect device for
control from without.”); see also id. at 63 (“[T]he keynote in the education of the Negro has been to do
what he is told to do. Any Negro who has learned to do this is well prepared to function in the American
social order as others would have him.”); see also Herbert Aptheker, Introduction, in W.E.B. DU BOIS’S
THE EDUCATION OF BLACK PEOPLE: TEN CRITIQUES 1906–1960 XIII (1973) (explaining that Du Bois
understood “tru[e] education” to be “fundamentally subversive” “given the realities of the social order” in
which Black people were subject to control by the white population). See also Vinay Harpalani, Civil
Rights Law in Living Color, 79 Md. L. Rev. 881 (2020) (discussing distinctions between and doctrines
concerning race, ethnicity, and color).

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that sort children by race and class.11 The legal boundaries of these school districts confine the
child within a fixed geographic space, prohibiting the child from attending schools in more
affluent neighborhoods, and enforcing that prohibition by criminal punishment when necessary.
Spatial confinement inevitably produces economic confinement, stunting the child’s lifetime
ability to acquire the income and assets needed to achieve geographic mobility. The state’s
proffered justification for such line-drawing—local control over education—no longer carries
empirical support (if it ever did), for it withholds from the households within affected local
districts the resources they need to carry out their educational goals.12 Local line-drawing not
only perpetuates racial and class segregation,13 but also excludes Black, Brown, and poor people
from participating in decisions about their children’s public schooling. In a perversion of the
concept, local control has become control by public school districts of local communities of
color that are kept marginalized and disempowered. Confinement operates on another level, too.
For once the state has sorted the children by race and class, confining them to sub-standard
schools that they are mandated to attend, the state not only disciplines truancy through the
juvenile justice system, but also contracts with security officers and police to restrain children for

11

Derek W. Black uses the term gerrymandering to refer to the process by which a state manipulates
geographic boundaries, together with funding formulas, in its design of public school districts. See Derek
W. Black, Educational Gerrymandering: Money, Motives, and Constitutional Rights, 94 N.Y.U. L. REV.
1385, 1390 (2019) (“States’ school funding inadequacies and inequities are not accidental but calculated
and illicit attempts to underfund the education of some students and get away with it—what this Article
terms gerrymandering.”). Black argues that “gerrymandering school funding to advantage and
disadvantage students is unconstitutional, regardless of the precise adequacy and equity outcomes it
produces,” id. at 1391, because the naked preference to disadvantage certain groups, even if those groups
are not treated as suspect classes for federal equal protection analysis, is impermissible.
12

Id. at 1415 (arguing that school funding gerrymandering fails to achieve proffered goals of
“fostering local control, adapting funding to local circumstances, and meeting student needs).
13

See generally CAMILLE WALSH, RACIAL TAXATION: SCHOOLS, SEGREGATION, AND TAXPAYER
CITIZENSHIP, 1869-1973 (2018).

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“acting out” or throwing tantrums, using suspension to punish the children, and confining them
in juvenile detention upon court order where educational services are minimal and substandard.14
The confinement experienced by Black, Brown and poor students in resource-starved
carceral public schools serves to maintain and reproduce economic stratification within a system
of racial capitalism.15 On the one hand, this confinement enables racial capitalism by “tracking”
already marginalized students toward low-wage and coerced labor through punitive discipline,16
under-education,17 and other forms of debasement.18 In so doing, carceral schools actively
participate in the process of racialized differentiation that is necessary for—or at the very least

14

See, e.g., TERA EVA AGYEPONG, THE CRIMINALIZATION OF BLACK CHILDREN: RACE, GENDER,
AND DELINQUENCY IN CHICAGO'S JUVENILE JUSTICE SYSTEM, 1899–1945 (2018).
15

Abolition Constitutionalism, supra note 8, at 7 (“[T]he expanding criminal punishment system
functions to oppress black people and other politically marginalized groups in order to maintain a racial
capitalist regime.”).
16

Angela Y. Davis, From the Convict Lease System to the Super-Max Prison, in STATES OF
CONFINEMENT: POLICING, DETENTION, AND PRISONS 60, 72 (Joy James, ed., 2000) (“In poor black
communities . . . schools tend to direct resources needed to address educational crises toward security and
discipline. Rather than preparing students for college, middle and high schools in these communities are
fast becoming prep schools for prison, molding black children into raw material for punishment and
coerced labor.”).
17

Erica Meiners, Ending the School-to-Prison Pipeline/Building Abolition Futures, 4 URB. REV. 547,
550–51 (2011) (“Public education in the United States has historically aggressively framed particular
populations as superfluous to our democracy yet imperative for low wage work, or jobs available after
full white employment. . . . [T]he targeted under- or un-education of particular populations . . . has always
tracked poor, non-white, non-able bodied, non-citizens and/or queers toward under or un-education, nonliving wage work, participation in a permanent war economy and/or permanent detention.”) [hereafter
Building Abolition Futures].
18

MANNING MARABLE, HOW CAPITALISM UNDERDEVELOPED BLACK AMERICA 150 (1983)
(describing the “ideological dependency” caused by the fact that “[t]he Black child attending public
school is burdened immediately with an educational pedagogy which rests on the assumption of his/her
cultural and intellectual inferiority.”).

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facilitates—hyper-exploitation under a racial capitalist regime.19 On the other hand, carceral
schools indirectly stabilize racial capitalism by funneling marginalized students into the criminal
punishment system, on which racial capitalism relies to manage “surplus populations” whom the
legal and political systems subject to “organized abandonment”20 with its associated joblessness
and inequality.21 In this account, schools, rather than functioning as tools for liberation,
exacerbate and cement unequal liberty.

19

The term “racial capitalism” was first used to describe South Africa’s political economy under
Apartheid. MARTIN LEGASSICK AND DAVID HEMSON, FOREIGN INVESTMENT AND THE REPRODUCTION
OF RACIAL CAPITALISM IN SOUTH AFRICA (1976). The concept was adapted by Cedric Robinson to form
a general thesis about capitalism. Robinson described capitalism as operating through projects of
“differentiation” whereby “regional, subcultural, and dialectical differences” were “exaggerate[d] . . . into
‘racial’ ones,” and then the supposed “racial[] inferior[ity]” effectively justified “domination and
exploitation.” CEDRIC J. ROBINSON, BLACK MARXISM: THE MAKING OF THE BLACK RADICAL
TRADITION 26 (1983). In Robinson’s analysis, “[t]he development, organization, and expansion of
capitalist society pursued essentially racial directions” with the result that “racialism . . . inevitably
permeate[d] the social structures emergent from capitalism.” Id. at 2. One of the primary implications of
Robinson’s argument that “[r]acism . . . was not simply a convention for ordering the relations of
European to non-European peoples but has its genesis in the ‘internal’ relations of European peoples” in
the context of constructing a capitalist economic order, is that capitalism depends on racializing projects
to maintain the hierarchies that allow for exploitation and class dominance. For recent articulations, see,
e.g., BRETT STORY, PRISON LAND: MAPPING CARCERAL POWER ACROSS NEOLIBERAL AMERICA 18
(2019) (“As a system and mode of production that necessitates inequality to function, capitalism, and
perhaps especially within liberal democracies, requires race as an ideology and racism as a hierarchical
system to enshrine that inequality as legitimate, even natural.”) [hereafter PRISON LAND]; Jodi Melamed,
Racial Capitalism, 12 CRITICAL ETHNIC STUD. 76, 77 (2015) (“Capital can only be capital when it is
accumulating, and it can only accumulate by producing and moving through relations of severe inequality
among human groups[,] . . . and racism enshrines the inequalities that capitalism requires.”).
20

Ruth Wilson Gilmore describes organized abandonment as the state-facilitated process of capital
disinvestment and deindustrialization that displaces workers from jobs and eviscerates public sector
services. RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND OPPOSITION IN
GLOBALIZING CALIFORNIA 58–86 (2007). The process results in “surplus populations”—“workers at the
extreme edges, or completely outside, of restructured labor markets, stranded in urban and rural
communities.” Id. at 70. The legal and political systems support racial capitalism through rules governing
such matters as labor, taxation, and corporate responsibility.
21

See, e.g., Dan Berger, How Prisons Serve Capitalism, PUB. BOOKS (Aug. 17, 2018), available at
https://www.publicbooks.org/how-prisons-serve-capitalism (“[C]arceral expansion is a form of political
as well as economic repression aimed at managing worklessness among the Black and Brown (and
increasingly white) working class for whom global capitalism has limited need.”); PRISON LAND, supra
note 19, at 18 (“Prisons . . . absorb the labor and land rendered surplus by deindustrialization and the
globalization of capital. They also operate as a new kind of labor-market institution. . . that . . . has shown

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In our view, abolition constitutionalism gestures to the appropriate legal pathway to “Free
Grace”—and all students ensnared by various forms of confinement in the profoundly unequal
public school system in the United States—for it acknowledges rather than ignores, sidesteps, or
camouflages the violence and restraint that public schools currently impose upon young people
who are Black, Brown, or poor. It recognizes the harms done to children who are confined in
public schools that function at worst as extensions of a carceral state and at best as factories for
reproducing expendable low-wage workers.22 Abolition constitutionalism demands that a federal
right to education afford children more than simply the minimum skills presumed necessary to
participate in a society wracked by racial and class subordination. Rather, the right must be part
of a larger democratic project that encourages human flourishing in a society that is still in
creation. We do not disguise the aspirational nature of the argument, but in our view it is
morally imperative—and critical for fulfillment the democratic vision of Reconstruction, at least
the more radical strands associated with the abolition-democracy. In this article, we show that
recognition of such a right is legally plausible in terms of precedent and that its effectuation is
institutionally practical with regard to federalism and the judicial requirement of manageable

to conceal unemployment in the short run, by absorbing many who would assuredly otherwise be
jobless”) (internal quotations omitted); Abolition Constitutionalism, supra n. 8, at 35 (“Prison expansion
instead reflects a response to the needs of rising neoliberal racial capitalism that addresses growing
socioeconomic inequality with punitive measures.”); see also Tracie R. Porter, The School-to-Prison
Pipeline: The Business Side of Incarcerating, Not Educating, Students in Public Schools, 68 ARK. L. REV.
55, 57, 66–68, 73 (2015) (examining the “school-to-prison pipeline through a capitalistic lens, revealing
that African American and Latino students expelled, suspended, or arrested in public schools are
exploited by the prison industry[.]”).
22

See Steven L. Nelson and Ray Orlando Williams, From Slave Codes to Educational Racism: Urban
Education Policy in the United States as the Dispossession, Containment, Dehumanization, and
Disenfranchisement of Black Peoples, 19 J. L. SOC. 82, 85 (2019) (discussing “how urban education
policy has led to the dispossession, containment, dehumanization, and disenfranchisement of Black
people in the United States”).

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standards.23 Above all, we believe that the positive vision of equal liberty encompassed within
such a right could be meaningful as support for social mobilization that is the authentic driver of
change. Recognizing the skepticism that movement groups have of constitutional rights,24 we
nevertheless urge that rights, reimagined within the abolitionist framework, hold significance for
social campaigns doing anti-racist, redistributive work.25
Part I of this article sketches out earlier advocacy efforts to secure a right to education
under the Equal Protection Clause of the federal Constitution and the turn over the last
generation to state constitutional approaches. State courts have given substantive content to state
constitutional education rights, with some emphasizing the development of capabilities that can
lead to human flourishing, and a small number have recognized that the withholding of adequate
public schooling while enforcing compulsory education laws interferes with a child’s liberty.

23

Compare Bruce Porter, Expectations of Equality, 33 SUP. CT. L. REV. 2d 23, 24 (2006) (discussing
expectations about equality as both predictions of outcomes and as moral imperatives). See Daniel A.
Farber & Suzanna Sherry, The Pariah Principle, 13. Const. Comment. 257, 257 n.2 (1996) (“Given the
overall tenor of the current Court, it hardly seems plausible that the Justices are about to launch a new
crusade for social justice on behalf of the downtrodden.”).
24

See Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405, 409 (2019)
(observing that the movement for criminal law reform “has largely refrained from fighting to strengthen
preexisting rights or demanding legal recognition of new ones”). For a discussion of contemporary
abolitionist movement demands in historical perspective, which eschews constitutional claims as a
vehicle for Black liberation, see AirGo Radio, The Abolition Suite Vol. 4: Robin D.G. Kelley (July 19,
2020), available at https://airgoradio.com/airgo/2020/7/19/episode-255-the-abolition-suite-vol-4-robindg-kelley.
25

Roberts argues for “instrumentally using the Constitution to build a society based on principles of
freedom, humanity, and democracy” by hearkening to interpretive moves made by slavery abolitionists:
Just as antebellum abolitionists broke from the dominant interpretation of the Constitution as a
proslavery document, so too prison abolitionists need not be shackled to the prevailing
constitutional jurisprudence in advancing the unfinished freedom struggle. . . . Abolition
constitutionalism, unlike other constitutional fidelities, aims not at shoring up the prevailing
constitutional reading but at abolishing it and remaking a polity that is radically different.
Abolition Constitutionalism, supra note 8, at 105, 109–10.

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Part II provides political and social context for the legal argument that follows by
surfacing the ways in which Black, Brown, and poor children are locked into inadequate carceral
schools, but locked out of politics to change conditions in those schools. This Part contrasts the
vision of education advanced by abolitionists during the First Reconstruction—in which robust
public education was seen as critical to securing meaningful freedom after emancipation—with
efforts of those who sought to undermine emancipation and reconstitute a racial caste system
after adoption of the Thirteenth and Fourteenth Amendments.
Part III sets out a liberty-based approach to quality education within an abolitionist
framework, building on the traditional due process guarantee that the state may not confine a
person without a substantial justification related to that confinement. Despite that guarantee,
Black, Brown, and poor students are compelled to attend, upon pain of legal sanction, public
schools that do not educate and that are physically and psychologically harmful to these children.
We show that in contexts of involuntary confinement, a violation of a person’s liberty interest
may serve as the source of the government’s duty to provide the goods and services that justify
the confinement.
Examined within the frame of abolition constitutionalism, we argue that the traditional
guarantee of equal liberty is violated if the content and conditions of public schooling arbitrarily
relegate one group of children, because of race and class, to sub-standard and unsafe schools, and
subject the children to persistent structural disadvantage. In our view, such a system
unconstitutionally perpetuates the very kind of racial and class caste that the Fourteenth
Amendment was aimed at abolishing. Moreover, a judicial remedy that orders the provision of
only a minimally adequate education will, in our view, perpetuate the constitutional harm, for
that level of schooling will entrench children’s lifelong social and political confinement while

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exploiting their caste labor through the prevailing racial capitalist regime. Rather, the remedy
must be that of the children’s release from the terms of confinement by affording them access to
quality schooling, whether through mobility strategies that allow children to transfer to schools
elsewhere or through the state’s provision of a quality education in the “assigned” school at a
level that encourages the children’s flourishing as an aspect of their equal liberty.
Finally, we connect the legal argument with theories of social mobilization, and respond
to criticisms mounted from different political quarters of law, lawyer, and court-based reform,
and briefly conclude.

I. Advocacy Efforts to Secure a Federal Right to Education
Establishing a federal constitutional right to education has long proved elusive despite
persistent advocacy,26 elegant scholarship,27 and public mobilization.28 To be sure, the Equal
Protection Clause of the Fourteenth Amendment provides some protection of a child’s access to
public schooling. Famously, Brown v. Board of Education held that a state may not
constitutionally segregate children in public schools on the basis of their race.29 Later, Plyler v.
Doe invalidated a state’s complete withholding of public schooling based on a child’s parent’s

26

Daniel S. Greenspahn, A Constitutional Right to Learn: The Uncertain Allure of Making a Federal
Case out of Education, 59 S.C. L. REV. 755 (2007-2008) (reviewing efforts to establish such a right).
27

See infra notes 79–82 and accompanying text.

28

Joshua Clark Davis, The Black Freedom Struggle of the North, AF. AM. INTELLECTUAL HIST. SOC.
(Aug. 20, 2020), available at https://www.aaihs.org/the-black-freedom-struggle-of-the-north (recounting
that “the single-largest one-day civil rights protest in the 1960s was by most estimates not the March on
Washington, but a student boycott of New York City’s public schools in February 1964”).
29

Brown v. Board of Educ., Shawnee Co., Kan., 347 U.S. 483 (1954). See also Bolling v. Sharpe, 347
U.S. 497 (1954) (holding that the District of Columbia’s racially segregated public school system violated
the Due Process Claus of the Fifth Amendment, which does not include an equal protection component).

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immigration status.30 The Court acknowledged in Plyler that public schooling, given its
“fundamental role in maintaining the fabric of our society,” is not “merely some government
‘benefit’ indistinguishable from other forms of social welfare legislation,”31 and although it
stopped short of declaring education fundamental under the federal Constitution, it recognized
that the arbitrary withholding of public schooling from certain groups violated the anti-caste
principle that lays at the core of the Equal Protection Clause of the Fourteenth Amendment.32
Nevertheless, in-between these decisions came two others that significantly blunted the
Equal Protection Clause as the basis for a right to education. The first was San Antonio Indep.
School Dist. v. Rodriguez, holding that disparities in funding across school districts did not deny
equal protection to children in low-wealth districts.33 In Rodriguez, the Supreme Court
considered a challenge under the Equal Protection Clause to Texas’s public education financing
scheme, which relied on local property tax revenues and resulted in massive inter-district
resource disparities.34 The Court found that strict scrutiny did not apply because no fundamental
right was at issue,35 reasoning, “the importance of a service performed by the State does not

30

Plyler v. Doe, 457 U.S. 220 (1982). See Michael A. Olivas, The Political Efficacy of Plyler v. Doe:
The Danger and the Discourse, 45 U.C. DAVIS L. REV. 1, 16–17 (2011) (trying to explain how, “[i]f
education were not a fundamental right for citizen children,” “the undocumented children . . . whose
parents were unable to organize politically or involve themselves in school issues” nevertheless
prevailed).
31

Plyler v. Doe, 457 U.S. at 221, 244.

32

Id. at 230.

33

San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).

34

Id. at 8–17.

35

Notably, the lower court had determined that strict scrutiny was called for because a fundamental
interest—education—was at issue. Rodriguez v. San Antonio Indep. School Dist., 337 F.Supp. 280, 282
(W.D. Tex. 1971). The majority of the Court, by contrast, looked for the existence of a fundamental right.
Both dissents pointed out that the majority transformed the Warren Court’s concept of “fundamental

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determine whether it must be regarded as fundamental for purposes of examination under the
Equal Protection Clause.”36 Instead, the Court looked to whether “there is a right to education
explicitly or implicitly guaranteed by the Constitution.”37 Finding no such right, the Court
concluded that the claim did not fall under the “fundamental rights” branch of equal protection
analysis.38 In so finding, the Court rejected plaintiffs’ “nexus” theory, which argued that
“education is itself a fundamental personal right because it is essential to the effective exercise of
First Amendment freedoms and to intelligent utilization of the right to vote.”39 Rodriguez left
open whether the federal Constitution protects a right to a minimum education, 40 but the Court’s
later seemingly narrow holding in Plyler—limiting the discussion to a complete withholding of
education because of immigrant status—seemed to dim the likelihood of an equality challenge to

interests” into a limited (unwarrantedly so) concept of “fundamental constitutional rights.” Rodriguez,
411 U.S. at 98–102 (Marshall, J., dissenting); id. at 62 (Brennan, J., dissenting).
36

Id. at 30.

37

Id. at 33–34.

38

Id. at 35.

39

The Court both cast doubt on the theory itself, stating it was difficult to perceive “logical
limitations” to its scope, and also found that the Texas system provided the “basic minimal skills” needed
to meaningfully exercise speech and voting rights. Id. at 36–37.
40

See Papasan v. Allain, 478 U.S. 265, 284 (1986) (“The [Rodriguez] Court did not . . . foreclose the
possibility ‘that some identifiable quantum of education is a constitutionally protected prerequisite to the
meaningful exercise of either [the right to speak or the right to vote].”’); see also Kadrmas v. Dickinson
Pub. Sch., 487 U.S. 450, 466 n.1 (1988) (Marshall, J., dissenting) (“The Court . . . does not address the
question whether a State constitutionally could deny a child access to a minimally adequate education.”).
The Court could, of course, revisit and overturn cases rejecting the general right, or it could take the path
left open by its prior opinions and affirm the existence of a right to a minimally adequate education (such
as one that provides access to literacy).

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inadequate public schooling.41 The second decision was that in Milliken v. Bradley,42 holding
that although the Detroit, Michigan public school system was illegally segregated on the basis of
race, a multi-district desegregation remedy was constitutionally impermissible absent evidence
that school district boundaries had been established “for the purpose of creating, maintaining, or
perpetuating segregation of races.”43 These two decisions—combined with the Supreme Court’s
increasing rejection of equality-based claims—convinced many advocates to shift the focus of
their litigation to state courts and to assert claims that relied on rights to education explicitly set
out in state constitutions.44
Beginning with Serrano v. Priest,45 which was pending before California courts at the
time Rodriguez was decided, some state courts interpreted state constitutional equality
guarantees as staking out broader protections than those the Supreme Court was willing to
recognize. In an opinion that pre-dated Rodriguez, the California Supreme Court had found the
California education financing scheme violated both state and federal equal protection
guarantees.46 When the case returned to the California high court after Rodriguez, defendants

41

Id. (stating that “even if it were conceded that some identifiable quantum of education is a
constitutionally protected prerequisite to the meaningful exercise of . . . [the individual’s right s to speak
and to vote], we have no indication that the present levels of educational expenditures in Texas provide an
education that falls short”).
42

Milliken v. Bradley, 418 U.S. 717 (1974).

43

Id. at 748.

44

Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330, 332 (2006) (“In
recent decades, the educational plight of disadvantaged schoolchildren, once an absorbing concern of
federal constitutional law, has managed to draw sustained legal attention mainly in the state courts.
Relying on education clauses in state constitutions, lawyers working together with school experts have
filed suits in forty-five states arguing for fairer distribution of educational opportunity.”).
45

18 Cal.3d 728 (1976).

46

Serrano v. Priest, 5 Cal.3d 584 (1971).

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argued that Rodriguez, which abrogated the federal constitutional holding, compelled revisiting
the state constitutional holding given the reasoning of the pre-Rodriguez decision. Plaintiffs
responded not only by arguing that the state equal protection holding survived Rodriguez
unscathed, but also that even under Rodriguez’s methodology for identifying fundamental rights,
the requisite “nexus” to constitutional rights existed because of various positive rights under the
state constitution.47 The California court held:
[F]or purposes of assessing our state public school financing system in light of our
state constitutional provisions guaranteeing equal protection of the laws (1)
discrimination in educational opportunity on the basis of district wealth involves a
suspect classification, and (2) education is a fundamental interest. Because the
school financing system here . . . involve[s] a suspect classification [wealth], and
because that classification affects the fundamental interest of the students of this
state in education, we have no difficulty in concluding . . . that the school financing
system before us must be examined under our state constitutional provisions with
that strict and searching scrutiny.48
In reaching this result, the California Supreme Court made clear that it would not employ
the Rodriguez Court’s methodology for identifying fundamental rights.49

47

The court cited California Const. Art. IX, § 1 (“A general diffusion of knowledge and intelligence
being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage
by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”);
Art. IX, § 5 (“The Legislature shall provide for a system of common schools.”); Art. XVI, § 8 (“From all
state revenues there shall first be set apart the monies to be applied by the state for support of the public
school system . . . .”).
48

Id. at 765–66.

49

The California court stated:
[W]e are constrained no more by inclination than by authority to gauge the importance of
rights and interests affected by legislative classifications wholly through determining the
extent to which they are ‘explicitly or implicitly guaranteed’ [citing Rodriguez] by the
terms of our . . . state Constitution. In applying our state constitutional provisions
guaranteeing equal protection of the laws we shall continue to apply strict and searching
judicial scrutiny to legislative classifications which, because of their impact on those
individual rights and liberties which lie at the core of our free and representative form of
government, are properly considered ‘fundamental.’

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In addition to classifying education as a fundamental interest, Serrano hinted at, but did
not develop, a functional understanding of fundamental rights by linking the provision of certain
public goods to the maintenance of a “free and representative form of government.” A decade
later, a functional approach—one centered on the capabilities education should help develop in a
young person—rose to prominence following a decision of the Supreme Court of Kentucky. In
Rose v. Council for Better Education,50 a case brought under the Kentucky Constitution’s
education clause,51 the Kentucky Supreme Court identified education as a fundamental right and
outlined “seven capacities” that an “adequate” education must be designed to help a child
develop:52
(i) sufficient oral and written communication skills to enable students to function in a
complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social,
and political systems to enable the student to make informed choices; (iii) sufficient
understanding of governmental processes to enable the student to understand the issues that
affect his or her community, state, and nation; (iv) sufficient self-knowledge and
knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts
to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient
training or preparation for advanced training in either academic or vocational fields so as
to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels
of academic or vocational skills to enable public school students to compete favorably with
their counterparts in surrounding states, in academics or in the job market.53

The Court acknowledged in a footnote that the inclusion of a right in the state constitution was
relevant, but not dispositive, to the question whether the right should be considered fundamental. Serrano
II, 18 Cal.3d at 764.
50

Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989).

51

Ky. Const. § 183 (requiring the legislature “provide an efficient system of common schools
throughout the state.”).
52

Although the constitution used the phrase “efficient system,” the court credited expert testimony
that “efficient” in this context meant, inter alia, “adequate.” Rose, 790 S.W.2d at 211.
53

Id. at 212. Rose built on a similar list articulated by the West Virginia Supreme Court—which the
Kentucky court quoted to show that “Courts may, should and have involved themselves in defining the
standards of a constitutionally mandated educational system,” id. at 210—but it was not until the
Kentucky Supreme Court’s opinion in Rose that this approach was widely adopted by state high courts.
See Pauley v. Kelly, 162 W.Va. 672 (1979).

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Emphasizing that “every child[] . . . must be provided with an equal opportunity to have an
adequate education,”54 the court drew on Kentucky’s constitutional convention to link equality to
the positive right to an education that promoted human flourishing along the seven dimensions
that it outlined.55
The Rose conception of the education right as public schooling sufficient for human
flourishing, and not simply that of minimal literacy, influenced succeeding state court litigation.
Indeed, as Scott Bauries has documented, the decision was “adopted or relied on in nearly every
other successful state court case for . . . two decades nationwide, regardless of differences in the
substantive language of the education clauses among the states”.56 Indeed, even states with
widely different education clauses have adopted the Rose capacities list wholesale.57 The
consensus assessment of these state court efforts, now more than a generation old, is that they

54

Id. at 211 (emphasis in original).

55

Id. at 205–06.

56

Scott R. Bauries, The Education Duty, 47 WAKE FOREST L. REV. 705, 736 (2012).

57

Consider Massachusetts, which adopted the Rose criteria. McDuffy v. Sec'y Exec. Office Educ., 615
N.E.2d 516, 526 (Mass. 1993) (“The guidelines set forth by [Rose] fairly reflect our view of the matter
and are consistent with the judicial pronouncements found in other decisions.”). Yet Massachusetts’s
constitutional education clause has little in common, textually or historically, with that of Kentucky’s
constitution. Mass. Const. Pt. II, Ch. 5, §2 (“Wisdom, and knowledge, as well as virtue, diffused
generally among the body of the people, being necessary for the preservation of their rights and liberties;
and as these depend on spreading the opportunities and advantages of education in the various parts of the
country, and among the different orders of the people, it shall be the duty of legislatures and magistrates,
in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all
seminaries of them; especially the university at Cambridge, public schools and grammar schools in the
towns[.]”). Other states have adapted it. See Abbeville Cnty. Sch. Dist. v. State, 515 S.E.2d 535, 540 (S.C.
1999) (“We define this minimally adequate education required by our Constitution to include providing
students adequate and safe facilities in which they have the opportunity to acquire: 1) the ability to read,
write, and speak the English language, and knowledge of mathematics and physical science; 2) a
fundamental knowledge of economic, social, and political systems, and of history and governmental
processes; and 3) academic and vocational skills.”).

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bore legal fruit, in the sense of producing litigation victories in a majority of the states, with
courts recognizing that claims under state education clauses are justiciable,58 and that they
provide the basis for ordering states and localities to improve public schooling for the plaintiffchildren.59 These lawsuits illustrate that even in the teeth of federal court defeats, social
movements continued to leverage power from the language of constitutional rights, even when
those rights were localized in state constitutional texts.60
Significantly, the state court education lawsuits expanded the notion of rights in a number
of important respects. First, against arguments that social equality claims are non-justiciable,
these state courts acknowledged and acted on their institutional competence to enforce
affirmative claims to government-provided services, notwithstanding the admittedly complicated
separation of powers issues that the claims present. In conceiving of the content of the right to
education, state courts emphasized not simply the acquisition of minimal skills needed for
majoritarian participation, but rather access to multiple capabilities that look to a broader
conception of individual autonomy at the core of a person’s liberty interest. One state court even
held a state’s failure to provide quality schooling to children whose attendance the state compels

58

However, concerns about justiciability persist in some state courts, and have become more
pronounced given the protracted nature of reform litigation. See Joshua E. Weishart, Aligning Education
Rights and Remedies, 27-SUM KAN. J.L. & PUB. POL’Y 346, 347 (2018) discussing state courts that have
“refused to even entertain the merits of these lawsuits for fear of being ensnared in a decades-long dispute
over what they deducted were political questions committed to the legislature for the constitution.”). See
generally Julia A. Simon-Kerr and Robyn K. Sturm, Justiciability and the Role of Courts in Adequacy
Litigation: Preserving the Constitutional Right to Education, 6 STAN. J. C.R. & C.L. 83 (2010).
59

See JEFFREY S. SUTTON, IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN
CONSTITUTIONAL LAW 30 (2018) (reporting that of 44 state constitutional challenges, plaintiffs won in
27, “and in the process compelled legislatures to adopt a host of additional reforms, many of which
increased funding and closed equity gaps”).
60

Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 VA.
L. REV. 1963, 1977 (2008), quoting Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir. 2007).

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violates a traditional notion of liberty at the core of due process. As the Alabama trial court
recognized in its 1993 decision in Alabama Coalition for Equity v. Hunt, a child’s liberty interest
is violated when the state mandates the student’s attendance at a public school that fails “to
provide an adequate education.”61 The court reasoned:
It is well-settled in this state that when the state deprives citizens of liberty for the
purpose of benefiting them with a service, due process requires that the service be
provided to them in an adequate form. . . .
The state of Alabama deprives students of their liberty by requiring them to attend
school under penalty of law. . . . [T]he purpose of depriving students of their liberty
by mandating school attendance is to educate them. . . . [C]ompulsory attendance
places a limitation on individuals' liberty and thus, as a matter of fairness, the state
ought to have to provide an adequate education.
Plaintiffs have made a clear showing in this case that the education that they are
receiving is not adequate; it falls short in facilities, staff, curriculum, textbooks,
supplies, special education, and other areas. . . . [T]he inadequate education that
plaintiffs are receiving does not justify the deprivation of their liberty. If the state
is to continue to make education compulsory and, thereby, to deprive children of
their liberty, due process requires that those children be accorded an adequate
education.62
In reaching this conclusion, the court primarily relied on the Alabama Constitution,
supplemented by a consideration of federal due process jurisprudence.63

61

Opinion of the Justices, Opinion of the Justices, 624 So. 2d 107, Appendix at 161–62 (Ala.
1993) (attaching the unpublished lower court decision Alabama Coalition for Equity v. Hunt
(Circuit Ct. Montgomery Co. year) as an appendix to an advisory opinion issued to the Alabama
state legislature regarding school funding). One of the authors was co-counsel in the Hunt litigation
while a lawyer with the American Civil Liberties Union. See also King v. State, 818 N.W.2d 1, 66
(Iowa 2012) (“[B]ecause education is compulsory, it involves liberty and its deprivation triggers a
due process right that the infringement of liberty be reasonably related to the intended purpose,
namely, education.”) (Appel, J., dissenting).
62

Id.

63

Id. at 161 n. 61 (noting in a footnote that “the Alabama Supreme Court has expressly adopted a
standard of more rigorous judicial scrutiny in state substantive due process review than that applied under
the federal due process clause.”). Echoing Gary B., the court also differentiated the facts before it from
those of D.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d 1364 (3rd Cir. 1992), in which the Third
Circuit rejected the existence of the type of “special relationship” envisioned by Deshaney between a
child and her public school. The Alabama court emphasized that, unlike in D.R.—a § 1983 action against

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Further, at least some state courts acknowledged and even highlighted the deep racial
impacts of public school inadequacy and found state liability without any showing of a current
intent to discriminate as required under federal equality doctrine. In a landmark decision, the
Connecticut Supreme Court recognized that public school segregation violates a child’s right to
equal protection whether it has occurred de jure or exists de facto.64 Finally, state education
litigation gave serious attention to the importance of community-based approaches to remedy,
endorsing democratizing strategies that actively engaged parents and other stakeholders in the
development of alternative school plans.65
Despite these advances, Black, Brown, and poor children continued and continue to be
detained in inadequate and harmful schools and prevented under threat of criminal sanction to
access educational opportunities in public schools made available to advantaged students

school officials who failed to intervene to prevent the gang-rape of two girls on campus, despite their
knowledge that the rapists had engaged in a course of sexually harassing conduct—here “the harm
suffered by Alabama schoolchildren is being inflicted by the state itself.” Opinion of the Justices, 624 So.
2d at 161 n. 63. Alabama’s Supreme Court later retreated from the education finance area altogether. Ex
parte James, 836 So. 2d 813 (Ala. 2002) (dismissing, primarily based on remedial concerns, school
finance litigation as nonjusticiable).
Aside from Alabama, two states rejected liberty-based substantive due process challenges, see Lewis
v. Spanolo, 710 N.E.2d 798, 812 (Ill. 1999); King, 818 N.W.2d at 31–34.while at least one other state has
indicated that such a challenge would be viable if (and only if) students are “not receiving . . . a basic
adequate education.” Fair Sch. Fin. Council of Okla., Inc. v. State, 746 P.2d 1135, 1150 (Okla. 1987).
The theory has also been advanced in some cases that have settled on terms favorable to the plaintiffs. See
Kenny A. ex rel. Winn v. Perdue, 454 F. Supp. 2d 1260, 1289 (N.D. Ga. 2006) (describing “sweeping
relief” afforded by the consent decree entered pursuant to a settlement), rev’d on other grounds 559 U.S.
542 (2010) (vacating attorney’s fee award); see also Kenny A. ex rel. Winn v. Perdue, 2003 WL 25682412
(N.D. Ga.), Complaint at ¶¶ 194–96 (setting forth substantive due process claims).
64

Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267 (1996). One of the authors was a co-counsel in this
law suit at an earlier stage in the proceedings while an attorney with the American Civil Liberties Union.
65

See, e.g., Helen Hershkoff, School Finance Reform and the Alabama Experience, in STRATEGIES
(Marilyn J. Gittell, ed.,
1998).
FOR SCHOOL EQUITY: CREATING PRODUCTIVE SCHOOLS IN A JUST SOCIETY

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elsewhere in the state.66 Establishing a federal constitutional right—one that would express a
national commitment to quality education for all—thus has remained an active aspiration,
motivating new advocacy efforts,67 notwithstanding doctrinal barriers that exist from three
converging directions and would seem to block recognition of such a right.
First, existing jurisprudence under the federal Equal Protection Clause makes it difficult if
not impossible to redress racial disparities without a showing of the government’s current intent
to discriminate on the basis of race. As Reva Siegel has bluntly put it, “equal protection no longer
protects;” to the contrary, the judicially-developed doctrine permits “the state to act in ways that
perpetuate, or even aggravate, the racial stratification of American society.”68 The racial effects
of the placement of school district boundaries, property tax funding systems, and state-formulas
for educational funding, although well-documented, thus seemed impervious to challenge under
existing Fourteenth Amendment precedent.69

66

See Laurie Reynolds, Uniformity of Taxation and the Preservation of Local Control in School
Finance Reform, 40 U.C. DAVIS L. REV. 1835, 1844 (2007) (stating that “neither the equality nor the
adequacy ‘wave’ of litigation has produced the desired resulted even on the heels of ostensible judicial
victory”).
67

See Derek W. Black, The Fundamental Right to Education, 94 NOTRE DAME L. REV. 1059, 1062
(2019) (“Recently litigants in three states [Michigan, Mississippi, and Rhode Island] returned to federal
court in the hope that the Court would finally translate its general commitment to education into a
doctrinal right.”).
68

Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing
State Action, 49 STAN. L. REV.. 1111 (1997). See also Areto A. Imoukhuede, Education Rights and the
New Due Process, 47 IND. L. REV. 467, 491 (2014) (“Equal Protection clause jurisprudence has retreated
from the early commitment to equal access to high quality, public education that the Court demonstrated
in Brown v. Board of Education.”); Andrew M. Siegel, Equal Protection Unmodified: Justice John Paul
Stevens and the Case for Unmediated Constitutional Interpretation, 74 FORDHAM L. REV. 2339, 2359
(2006) (stating that equal protection doctrine fails to distinguish between a racial classification “that is
designed to perpetuate a case system and one that seeks to eradicate racial subordination”), quoting
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 243 (1995) (Stevens, J., dissenting) (citation omitted).
69

Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L.
Rev. 101 (1995); see also Alan David Freeman, Legitimizing Racial Discrimination Through
Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1050

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Second, casting the equality claim in terms of poverty or economic status fares no better
and in some ways even worse. Indeed, the argument appeared to be a non-starter: absent
recognition of a fundamental right to education, the Equal Protection Clause alone would not
redress wide disparities in the quality of public schooling attributable to the wealth of the
communities in which students lived.70 The Court refused to treat poor persons as members of a
group in need of heightened protection, and its application of rationality review when assessing
laws affecting the poor inevitably was said to be inevitably fatal to a litigant’s claim.71
Third, it is not clear that winning on equality grounds would actually improve educational
conditions for Black, Brown, and poor children. In the forty years since Peter Westen referred to
the “empty idea of equality,”72 scholars have offered substantive principles to fill the gap,73 and
tried to redirect attention to specific conditions of relative equality that could give rise to
posterior claims of arbitrary state action.74 However, the Court has declined to read a

(1978) (“[A]s surely as the law has outlawed racial discrimination, it has affirmed that Black Americans
can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for
decent housing, and have very little political power, [all] without any violation of antidiscrimination
law.”).
70

See Cary Franklin, The New Class Blindness, 128 YALE L.J. 2 (2018) (recounting that the equal
protection doctrine does not “recognize class-based discrimination as suspect under the Equal Protection
Clause,” but arguing that substantive due process continues to afford some class-based relief for the
impoverished when fundamental rights are at stake).
71

See Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. Pa. L. Rev. 1277, 1283
(1993) (explaining that “[f]ormally, the Court set down a rule that claims by poor persons would be
evaluated under minimum rationality review,” and that ‘[f]unctionally, . . . the Court erected what appears
to be an insurmountable presumption that political decisions concerning social welfare issues are
constitutional”).
72

Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 3 (1982).

73

See, e.g., Kent Greenawalt, How Empty Is the Idea of Equality, 83 COLUM. L. REV. 1167 (1983).

74

See Anthony D’Amato, Is Equality a Totally Empty Idea, Faculty Working Papers No. 115 (2010),
available at http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/115.

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fundamental right to an adequate education into equality, so that an equality claim, even if
successful, would permit remedies that treat the favored group on a par with the disfavored
group—what is known as ratcheting down.75 Of course, ratcheting down was not always
politically viable, but it allowed the Court to stake out a minimalist approach consistent with
concerns of community backlash (meaning, resistance by white and affluent persons and
groups),76 a purported need to quell “pluralist anxiety,”77 and professed limits of economic
austerity, especially after the 2007 financial meltdown.78
Against these obstacles, scholars looked beyond the Equal Protection Clause for other
doctrinal sources that could support a federal right to education. These included the First
Amendment,79 the Citizenship Clause,80 substantive due process,81 and originalist arguments that

75

See, e.g., Sessions v. Morales-Santana, 582 U.S. --- (2017) (explaining that the remedy for a
violation of equal protection can be “accomplished by withdrawal of benefits from the favored class as
well as by extension of benefits to the excluded class”) (internal citation omitted). See also Philip B.
Kurland, The Privileges or Immunities Clause: “Its Hour Come Round at Last?”, 1972 WASH. U. L. Q.
405, 419 (1972) (“With all due respect to those who have labored so hard in the vineyard, equal
educational opportunity is not the essence of the claim. It is not equality but quality with which we are
concerned. For equality can be secured on a low level no less than a high one. The claim that will have to
be developed will be a claim to adequate and appropriate educational opportunity.”).
76

Frank Brown, Brown and the Politics of Equality, 26 URB. REV. 4 (1994).

77

Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 748 (2011) (“The
jurisprudence of the United States Supreme Court reflects [] pluralism anxiety.”).
78

Joshua E. Weishart, Equal Liberty in Proportion, 59 WM. & MARY L. REV. 215, 269 (2017)
(“during and after the Great Recession, even courts that had been reliably active and emphatic in their
demands on state government ‘stopped short of dictating remedies at a level of detail that encroaches on
legislative prerogative.”), quoting Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104
CALIF. L. REV. 75, 114 (2016).
79

See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the United
States Constitution, 86 NW. U. L. REV. 101 (1982).
80

See, e.g., Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330 (2006).

81

See, e.g., Joshua E. Weishart, Reconstituting the Right to Education, 67 Ala. L. Rev. 915, 972–77
(2016); Barry Friedman & Sara Solow, The Federal Right to an Adequate Education, 81 Geo. Wash. L.
Rev. 92 (2013).

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paid obeisance to the Court’s dominant interpretive approach.82 And so it seemed a banner day
when, on April 23, 2020,83 a divided panel of the Sixth Circuit Court of Appeals recognized “a
basic minimum education” as a “fundamental right” under the federal Constitution.84 In reaching
this conclusion, the appeals court affirmed the district court’s dismissal of plaintiff’s claim under
the federal Equal Protection Clause.85 Acknowledging that the Supreme Court’s earlier cases
gave them “guidance but no answers” as to whether education is an unenumerated but
fundamental right,86 the circuit court instead applied the “substantive due process framework” of
Glucksberg and Obergefell87 to conclude that the right to education is a fundamental right,
“narrow in scope,” and one that “only guarantees the education needed to provide access to skills
that are essential for the basic exercise of other fundamental rights and liberties, most

82

Derek W. Black, Implying a Federal Right to Education, in A FEDERAL RIGHT TO EDUCATION:
FUNDAMENTAL QUESTIONS FOR OUR DEMOCRACY 135, 155–58 (Kimberly Jenkins Robinson, ed., 2019).
83

See Mark Walsh, U.S. Appeals Court Recognizes a Federal Right of Access to Literacy, SCHOOL
LAW (Apr. 23, 2020) (quoting Justin Driver, that the Sixth Circuit ruling is “the most momentous circuit
court decision in the field of education in decades”), available at
https://blogs.edweek.org/edweek/school_law/2020/04/federal_appeals_court_recognizes.html.
84

Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020), reversing in part and remanding Gary B. v.
Snyder, 313 F. Supp. 3d 852 (E.D. Mich. 2018). The decision was written by Judge Eric L. Clay and was
joined by Judge Jane Branstetter Stranch. The dissenting opinion was written by Judge Eric E. Murphy.
The Eastern District opinion was written by Judge Steven Murphy. The decision upheld the prior ruling
that the plaintiffs failed to “adequately plead their equal protection and compulsory attendance claims.”
Id. at 3.
85

Gary B., 957 F.3d at 633 (explaining that the complaint did not adequately plead an equalprotection claim, “regardless of the level of scrutiny,” because it failed to allege “any disparity in the
state’s allocation of resources between their schools and others”).
86

Id. at 648.

87

Id. at 642 (relying on Washington v. Glucksberg, 521 U.S. 702 (1997), and Obergefell v. Hodges,
576 U.S. 644 2584 (2015)). The circuit court also looked to “the reasoning” of Rodriguez and Plyler. See
id. (relying on San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973), and Plyler v. Doe,
457 U.S. 220 (1982)).

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importantly participation in our political system.”88 The Sixth Circuit also considered whether
the children suffered a different violation of due process—that they suffered a violation to “the
right to freedom of movement and freedom from state custody” because state laws compel their
attendance at public schools that are “‘schools in name only.’”89 Observing that the claim
“appears to have strong support in the law,” the court nevertheless held that plaintiffs “fail[ed to]
provide information about the extent or nature of the restraint on their liberty,”90 and remanded,
allowing for amendment of the complaint.
Within a month of the decision, the parties entered into a settlement agreement,
contemplating “dismissal of the underlying action” in exchange for institutional reforms that
include increased funding for literacy programs and the establishment of an equity task force to
consider and recommend additional state-level reforms. 91 And in that same period, following a
sua sponte request of a member of the Gary B. en banc panel, the Sixth Circuit vacated the
decision and judgment and stayed the mandate.92 Whether the Sixth Circuit, or any federal
court,93 will soon recognize education as a fundamental right and a part of a person’s basic

88

Id. at 659.

89

Id. at 638.

90

Id. at 642.

91

See Terms for Settlement Agreement and Release Between All Plaintiffs and the Governor of the
State of Michigan in Gary B., et al. v. Whitmer, et al., Settlement Term Sheet (dated May 13, 2020),
available at http://www.publiccounsel.org/tools/assets/files/1382.pdf.
92

Gary B. v. Whitmer, 958 F.3d 1216 (6th Cir. 2020).

93

See Class Action Complaint, Cook et al. v. Raimondo, 1:18-cv-00645, ECF No. 1 (D.R.I. Nov. 28,
2018) (seeking declaratory and injunctive that plaintiffs have a federal right to education). See also
Williams v. Reeves, 954 F.3d 729 (5th Cir. 2020) (reversing dismissal of complaint filed in 2017 alleging
that the current version of the Mississippi Constitution violates the “school rights and privileges”
condition of the Mississippi Readmission Act).

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liberty, or provide redress for gross racial and class inequalities in the provision of educational
opportunities within and across school districts, remains an open and vital question.

II. Contextualizing the Argument: Locked into Carceral Schools and Locked Out
of Politics
In this Part, we contextualize our argument by showing how race and class have
structured American public schooling from its earliest days. In foregrounding these policies and
their consequences, we explain how the resulting system relies on coercion and compulsion by
either withholding education entirely or requiring children to attend substandard facilities.
Understanding that schools have the potential to detain children while both providing little of the
promised pedagogic benefits, and disempowering the communities in which they operate, is not
a new gloss on the history of U.S. education. Indeed, the encroachment of the prison-industrial
complex into public schools—and these schools’ reciprocal engagement with the criminal
punishment system—are so manifest as to have a name: the school-to-prison pipeline.94 By
design and effect, public schools for Black, Brown, and poor children have transformed into
extensions of the carceral state and become instruments for maintaining and reproducing racial
capitalism.
This Part does not purport to present a comprehensive account of public schooling and its
role in racial and class control. But if the project of abolition constitutionalism is to “remak[e] a
polity that is radically different,”95 it is important to acknowledge in open and sober terms what

94

See Deborah N. Archer, Introduction: Challenging the School-to-Prison Pipeline, 54 N.Y. L. SCH.
L. REV. 867, 868 (2009) (“The school-to-prison pipeline is the collection of education and public safety
policies and practices that push our nation's schoolchildren out of the classroom and into the streets, the
juvenile justice system, or the criminal justice system. There are both direct and indirect avenues through
the pipeline.”). Some have argued that the name is misleading, because
95

Abolition Constitutionalism, supra note 8, at 10.

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needs to be changed. Our project carries forward the best aspirations of the federal Constitution
and its promise of equal liberty, but contemplates a break with a present and past—stretching
back to Reconstruction—in which public education has been used to perpetuate the unequal and
racial distribution of liberty in the United States.

A. Public Schools and the Politics of Racial and Class Exclusion
“The Constitution promises liberty to all within its reach,” Justice Kennedy wrote in the
Court’s landmark decision recognizing marriage equality,96 but that promise was empty for the
enslaved—recognized to be “[t[he most flagrant violation of the American tradition of equal
liberties.”97 The withholding of education—and the criminalization of providing education to
enslaved Blacks—was a critical weapon in maintaining the institution. Beginning with South
Carolina’s Negro Act of 1740, colonies adopted laws to ban slave literacy; indeed, after the Nat
Turner Rebellion, Virginia made it a capital offense to violate the act.98 By the time of the Civil
War, every state except Tennessee had outlawed the education of enslaved Black people.99 The
southern plantation oligarchy understood denial of education as central to the project of

96

Obergefell v. Hodges, 576 U.S. 644 (2015).

97

Kenneth Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L.
REV. 99, 101 (2007).
98

See Birgit Brander Rasmussen, “Attended with Great Inconveniences”: Slave Literacy and the
1740 South Carolina Negro Act, 125 PMLA 201 (Jan. 2010) (discussing legislation that cast “slave
literacy as a potential threat to the slaveholding colony” and the extension of such laws to other colonies
and after independence). See also MONIQUE W. MORRIS, PUSHOUT: THE CRIMINALIZATION OF BLACK
GIRLS IN SCHOOLS 5 (2016) (stating it was a “punishable offense” to educate a person of African
descent).
99

ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863–77, at 246 (2d ed.
2015) [hereafter AMERICA'S UNFINISHED REVOLUTION].

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maintaining the empire of slavery.100 W.E.B. Du Bois later emphasized that the laws
criminalizing the education of Black people were “explicit and severe.”101 Although Black
people undertook great risks to secure as much education as possible,102 90 percent of the adult
Black population in the south was illiterate in 1860.103
The Thirteenth Amendment abolished slavery,104 and emancipation transformed the
terrain of struggle—but did not lessen its intensity—over education for Black people. From the
outset of the Reconstruction era, Black people considered “education . . . [to be] central to the
meaning of freedom.”105 This sentiment was shared by abolitionist officials in government. To
Freedman’s Bureau Commissioner Oliver Howard, for example, education was “the foundation
upon which all efforts to assist the freedmen rested.”106 The demands of Black peoplefor

100

Grey Gundaker, Hidden Education Among African Americans During Slavery, 109 (7) TEACHERS
COLLEGE REC. 1597 (2007) (describing white fears about educating Black people after slave revolts led
by Denmark Vesey and Nat Turner in 1822 and 1831, and after the 1829 publication of David Walker’s
An Appeal to the World).
101

W.E.B. DU BOIS, BLACK RECONSTRUCTION: AN ESSAY TOWARD A HISTORY OF THE PART WHICH
BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA, 1860–1880, at 638
(1935) [hereafter BLACK RECONSTRUCTION].
102

See HEATHER ANDREA WILLIAMS, SELF-TAUGHT: AFRICAN AMERICAN EDUCATION IN SLAVERY
AND FREEDOM 7–29 (2005) (discussing the small percentage of Black people who, “through ingenuity
and wit,” acquired basic literacy prior to the Civil War).
103

AMERICA'S UNFINISHED REVOLUTION, supra note 99, at 247.

104

But see Joy James, Introduction, Democracy and Captivity, in THE NEW ABOLITIONISTS:
(NEO)SLAVE NARRATIVES AND CONTEMPORARY PRISON WRITINGS, at xxii (Joy James ed., 2005)
(referring to the carve-out that provides, “except as punishment for crime,” as creating an “enslaving antienslavement narrative” such that the Thirteenth Amendment “ensnares as it emancipates”).
105

AMERICA'S UNFINISHED REVOLUTION, supra note 99, at 247; see also BLACK RECONSTRUCTION,
supra note 101, at 641 (“[B]lack folk. . . connected knowledge with power [and] believed that education
was the stepping-stone to wealth and respect, and that wealth, without education, was crippled.”).
106

Id. at 339; see also BLACK RECONSTRUCTION, supra note 101, at 191–215 (describing the
positions of Charles Sumner, Thaddeus Stevens, and other supporters of abolition democracy, including
commitment to education); see also W.E.B. DU BOIS, THE EDUCATION OF BLACK PEOPLE: TEN

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education drove the establishment of the public school system in the south,107 and led to
amendments of state constitutions to include authorization for public schools, which in some
states, was a condition of readmission to the union.108
Recognizing that the project of abolition-democracy posed the threat of permanently
securing a radical redistribution of power,109 the white south mobilized against education—at
least as envisioned by proponents of the abolition-democracy.110 A study commissioned by
President Andrew Johnson found that the white south was “almost as bitterly set against the
Negro’s having the advantage of education as it was when the Negro was a slave.”111 The
backlash to Black people’s education included not only direct acts of racial terrorism, such as

CRITIQUES 1906–1960 131 (1973) (“It is all well enough to talk about equality of human beings and their
liberty to act; the real fact of the matter, as we have known for generations and as we are beginning to
admit today, is that a man who does not have enough to eat or the clothing and shelter necessary for
health, and who is uncertain as to how long his present meagre income is going to last, is not free, and
cannot be called the equal of the man with sufficient and assured income and security of status”).
107

BLACK RECONSTRUCTION, supra note 101, at 638 (“Public education for all at public expense,
was, in the South, a Negro idea.”); see also id. at 641; AMERICA'S UNFINISHED REVOLUTION, at 340
(“Bureau schools [] helped lay the foundation for Southern public education”).
108

Id. at 637–669 (describing state constitutional conventions and legislative efforts pertaining to
education). See Williams v. Reeves, 954 F.3d 729 (5th Cir. 2020) (discussing readmission requirements
with respect to public schooling).
109

BLACK RECONSTRUCTION, supra note 101, at 38 (finding that “the result was little less than
phenomenal” whenever newly freed Black persons received “honesty in treatment, and education”)
(emphasis added).
110

Du Bois described the abolition-democracy as “based on freedom, intelligence and power for all.”
BLACK RECONSTRUCTION, supra note 101, at 182; see also id. at 25 (“[A]ll those who sincerely desire to
make the freedman a freeman in the true sense of the word, must also be in favor of so educating him[.]”).
111

Carl Schurz, Report on the Condition of the South, 39th Cong., 1st Sess., Senate Executive
Document Number 2 (Dec. 1865), available at
https://wwnorton.com/college/history/america9/brief/docs/Schurz_Carl_Report_on_the_Condition_of_the
_South_1865.pdf; see also BLACK RECONSTRUCTION, supra note 101, at 132–36 (describing Schurz’s
report as “[t]he classic report on conditions in the South directly after the war”).

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burning of independent and Bureau-supported school houses,112 but also subtler forms of
opposition and co-optation.
One strategy of co-optation that some Reconstruction-era white southerners consciously
pursued was to use the school as an institution of coercive control for the reconstitution of a
racial capitalist order, adapted within an agrarian society that would continue to be structured
around the same racial hierarchies that pre-dated Emancipation. Wade Hampton III—a
Confederate General and, later, financier of the Ku Klux Klan—proposed to establish a system
of schools on plantations, and undertook to do so on his own plantation at personal expense.113
He recognized that the plantation schoolhouse could be a tool of confinement and maintenance
of class stratification by “fix[ing] the laborers to the soil . . . result[ing] in vast ultimate benefit to
the landlord.”114 Or, as put more succinctly by a southern newspaper: a “freedman” should be
taught “that he is free, but free only to labor.”115 This strategy and rhetoric reflected southerners’
recognition that schools could confine and discipline as well as emancipate.116 Accordingly, then

112

C.W. Tebeu, Some Aspects of Planter-Freedman Relations, 1865–1880, 21 J. NEGRO HIST. 2, 139
(1939).
113

Id. at 138. He and others sought, without success, to obtain state funding for this model. Id.

114

Id. (quoting Hampton).

115

AMERICA'S UNFINISHED REVOLUTION, supra note 99, at 321 (emphasis in original); see also
SARAH HALEY, NO MERCY HERE: GENDER, PUNISHMENT, AND THE MAKING OF JIM CROW MODERNITY
3 (2016) (“State violence alongside gendered forms of labor exploitation made the New South possible,
not as a departure from the Old, but as a reworking and extension of previous structures of captivity and
abjection[.]”); W.E.B. DU BOIS, THE EDUCATION OF BLACK PEOPLE: TEN CRITIQUES 1906–1960 122–23
(1973) (“The object of white labor was not the uplift of all labor; it was to join capital in sharing the loot
from exploited colored labor. So we too, only half emancipated, hurled ourselves forward. . . . But white
folk occupied and crowded these stairs.”).
116

To be clear, this conception of education was not unique to the south. Rather, northern
industrialists already recognized the common education system as an “amalgam of benevolent uplift and
social control,” id. at 342, and they expected post-war southerners to regard education the same way.
BLACK RECONSTRUCTION, at 185 (describing expectation that south would began to grant “some popular

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as now, the struggle over education was not merely over access and quality, but also over
whether the predominant function of the school would be to exercise coercive control or rather to
develop the capacities of students.117 On balance, moneyed interests that sought to maintain the
existing racial caste system as a source of cheap labor won out.118 Thus, the education system’s
potential to serve as a tool of Black liberation was subverted from its inception.119
In envisioning the provision of education—within limits—as an instrument for
subordinating and exploiting persons for their labor, rather than for achieving their equal liberty,
southerners drew on a tradition with roots in the English and U.S. poor laws.120 As Frances Fox

education . . . which would be straitly curtailed in its power for mischief by the far larger power of
capital.”).
117

On the one hand, the white south struggled to reassert control. AMERICA'S UNFINISHED
REVOLUTION, supra note 99, at 321–22 (“No detail of blacks’ lives seemed exempt from outside
control.”). At the same time, Black people struggled to erect independent institutions. See, e.g., id. at 212–
13 (describing “a desire for independence from white control” manifested in operation of schools,
churches, and other public institutions “liberated from white supervision”); id. at 248 (quoting a member
of an education society describing an autonomous school-house as “the first proof of independence.”)
(emphasis in original).
118

WILLIAM WATKINS, THE WHITE ARCHITECTS OF BLACK EDUCATION: IDEOLOGY AND POWER IN
AMERICA, 1865–1954 22–23 (2001) (tracing how “accommodationism”—a post-Civil War politics that
saw subordination of Black people as “part of the natural order”—“shaped the sponsored education of
Blacks in the United States” and pursued the “objective[] [of] a stable and orderly south where
subservient wage labor and debt farming or share-cropping would provide the livelihood for Black
Americans.”) [hereafter WHITE ARCHITECTS]; see also W.E.B. DU BOIS’S THE EDUCATION OF BLACK
PEOPLE: TEN CRITIQUES 1906–1960 97 (1973) (“The organized might of industry north and south is
relegating the Negro to the edge of survival and using him as a labor reservoir on starvation wage.”);
BLACK RECONSTRUCTION, supra note 101, at 506 (“The whole criminal system came to be used as a
method of keeping Negroes at work and intimidating them. Consequently there began to be a demand of
jails and penitentiaries beyond the natural demand due to the rise in crime.”).
119

WHITE ARCHITECTS, supra note 119, at 182 (“The shaping of race relations was inextricably
connected to Black education. The objective of the ruling order was to wed Constitutional freedom with
social subservience. Freedom became the form, subservience the content.”).
120

The English Poor Laws, with their emphasis on local assistance, provided the model for indigent
relief in colonial America, and made residence within a community a primary determinant of eligibility
for assistance. See William P. Quigley, Work or Starve: Regulation of the Poor in Colonial America, 31
SAN FRAN. L. REV. 35, 40 –41 (1996) (describing transportation of vagabonds and regulation of
vagrants). The rules of settlement imposed strict restrictions on liberty, regulating mobility both within a

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Piven and Richard Cloward have shown, there is a long history of “[r]elief arrangements . . .
granting [assistance] on condition that [the recipients] behave in certain ways and, most
important, on the condition that they work.”121 Consistent with the idea of “free[dom] only to
labor,” Piven and Cloward describe the establishment of schools “to teach pauper children to
read and write” as part of the “effort . . . to redirect the employable poor . . . into the work
force.”122 Piven and Cloward’s analysis echoes that of Du Bois, who recognized the effort to
subvert education as envisioned by abolition-democracy for the purpose of preparing a work
force for menial jobs.123

town and from town-to-town and were enforced through various devices throughout the colonies during
different time periods. Intra-town restrictions typically regulated mobility by confining the poor to
almshouses or workhouses, indenturing and apprenticing, the binding out of widows and other women as
domestic servants, see MIMI ABRAMOWITZ, REGULATING THE LIVES OF WOMEN 86–87 (1988), or
enslavement (or registration requirements for free people of color). See Quigley, supra note 120, at 70–
71, 77–78. Inter-town restrictions depended on a mix of outlawry (vagrants and vagabonds were excluded
or expelled), “warning out” rules, waiting periods to acquire residence status, and certificate systems that
required a household wishing to relocate to certify that the town of origin would reimburse the receiving
town for the cost of any prospective relief. See Caleb Foote, Vagrancy-Type Law and Its Administration,
104 U. PA. L. REV. 603 (1956); see also David J. Rothman, Discovery of the Asylum: Social Order and
Disorder in the New Republic 24 (1971) (explaining that Delaware’s settlement law required the stranger
and the vagrant, whether able to work or disabled, “to post security or quickly leave the county under
penalty of daily whippings until they did so”); Quigley, supra note 120, at 52 (describing the
Pennsylvania certificate system); Stefan A. Riesenfeld, The Formative Era of American Public
Assistance, 43 CAL. L. REV. 175, 219 (1955) (describing the certificate system of New Amsterdam prior
to English colonial rule).
121

FRANCES FOX PIVEN AND RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF
PUBLIC WELFARE 22 (1971) [hereafter REGULATING THE POOR]; cf. AMERICA'S UNFINISHED
REVOLUTION, supra note 99, at 253 (describing Black southerners’ desire for “assistance without control”
in running schools).
122

REGULATING THE POOR, supra note 121, at 22–23.

123

BLACK RECONSTRUCTION, supra note 101, at 698 (“An attempt was made through advocacy of
so-called industrial education to divert the Negro schools from training in knowledge to training in crafts
and industry. But . . . no effective industrial training was ever given in the Southern public schools, except
training for cooking and menial service.”).

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Limiting the educational opportunity of Black children not only controlled their later
access to higher wage jobs, property acquisition, and geographic mobility, but also to the
franchise. Many states required a Black citizen to pass—usually with a 100 percent grade—tests
that purported to test the person’s literacy skills as a condition of voting. Although the literacy
requirement was race-neutral, in practice, white examiners used their discretion to waive
requirements for white test-takers and to fail Black test-takers.124 Some states even amended
their constitutions to require the passing of the test as a condition of voting.125 In 1898, the
Supreme Court upheld the literacy tests in Mississippi on the view that they were applied to both
white and Black registrants, giving no weight to the fact that white officials administering the
test did so in a biased way.126 Together with the poll tax and property-ownership requirements,
these conditions on the right to vote were highly successful: by 1940, only three percent of all
eligible Black voters were registered to vote in the South.127 The Voting Rights Act of 1965
restricted the use of literacy tests,128 and the 1975 amendments broadened those protections to
non-English speaking voters.129 But by any measure, Black people remained locked out of

124

See Rebecca Onion, Take the Impossible “Literacy” Test Louisiana Gave Black Voters in the
1960s, SLATE (June 28, 2013), available at https://slate.com/human-interest/2013/06/voting-rights-andthe-supreme-court-the-impossible-literacy-test-louisiana-used-to-give-black-voters.html. See also Civil
Rights Movement Voting Rights: Are You “Qualified” to Vote? Take a “literacy Test” to Find Out,
available at https://www.crmvet.org/info/lithome.htm.
125

See John Ray Skates, The Mississippi Constitution of 1890, Mississippi History Now, available at
http://www.mshistorynow.mdah.ms.gov/articles/103/mississippi-constitution-of-1890
126

Williams v. Mississippi, 170 U.S. 213 (1898).

127

STEVEN S. LAWSON, RUNNING FOR FREEDOM: CIVIL RIGHTS AND BLACK POLITICS IN AMERICA
SINCE 1941 81 (1997).
128

CHANDLER DAVIDSON, QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS
ACT, 1965–1990 (2001).
129

See generally David H. Hunter, The 1975 Voting Rights Act and Language Minorities, 25 CATH.
U. L. REV. 250 (1976).

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politics,130 and their children remained locked in inadequate schools under the combined weight
of compulsory education laws and punishment for truancy.131
The story of the Ocean Hill-Brownsville education experiment dramatically illustrates
this dynamic in the early post-Brown era. A decade after Brown, New York’s schools were even
more segregated than before 1954, in part because of organized racist backlash against
integration from white community groups, and schools in poor Black neighborhoods remained
substandard.132 The Ocean Hill-Brownsville experimental district, an effort to vest community
control of schools in poor Black neighborhoods, was one response to sustained organizing about
failing and unsafe schools in Black neighborhoods. The “genesis” of the Ocean Hill-Brownsville
district was a New York City Board of Education public hearing in December 1966.133 After
Board President Lloyd Garrison refused to give the floor to a Black mother complaining of
“ghetto”-like conditions in the schools, protests erupted, leading a frustrated Garrison to shut it

130

Jocelyn Simonson, Police Reform Through a Power Lens, 130 YALE L.J. (manuscript at 18–19)
(forthcoming 2021) (“Punitive law enforcement practices in [race-class subjugated] neighborhoods
become self-reinforcing, independent of crime rates, with a direct impact on political power. . . . The laws
and everyday practices of policing preclude poor people of color from being full democratic subjects.”);
Danyelle Solomon, Connor Maxwell, and Abril Castro, Systematic Inequality and American Democracy,
CTR. AM. PROG. (Aug. 7, 2019), available at
https://www.americanprogress.org/issues/race/reports/2019/08/07/473003/systematic-inequalityamerican-democracy/.
131

Project, Education and the Law: State Interests and Individual Rights, 74 MICH. L. REV. 1373,
1383 n.43 (1976). See ELIZABETH GILLESPIE MCRAE, MOTHERS OF MASSIVE RESISTANCE: WHITE
WOMEN AND THE POLITICS OF WHITE SUPREMACY (2020); MATTHEW F. DELMONT, WHY BUSING
FAILED: RACE, MEDIA, AND THE NATIONAL RESISTANCE TO SCHOOL DESEGREGATION (2016).
132

JERALD PODAIR, THE STRIKE THAT CHANGED NEW YORK: BLACKS, WHITES, AND THE OCEAN
HILL-BROWNSVILLE CRISIS 21–25 (2003) [hereafter STRIKE THAT CHANGED NEW YORK].
133

Id. at 71.

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down.134 Rather than depart, protesters occupied the Board’s offices and anointed themselves the
“People’s Board of Education.”135 After a multi-day sit-in, Garrison ordered the arrest of the
protesters, who were “carried out” by police while supporters looked on with signs that read,
“Will Jail Help My Child To Read?”136 Weeks later, Ocean Hill-Brownsville residents borrowed
the “People’s Board of Education” concept to constitute an “Independent School Board” as part
of a boycott of their local school board in response to being locked out of governance by middleclass white people from a nearby neighborhood.137 Begrudgingly, the Board and City
government conceded that “without community control of education in [B]lack neighborhoods,
there would be no peace in New York.”138
With funding from the Ford Foundation and support from the Mayor, in 1967, the Board
of Education established a local Ocean Hill school board drawn from community residents, to
administer its own school district.139 In 1968, the local board—which had clashed with both the
Board of Education and the 90-percent-white United Federation of Teachers (UFT) over its

134

Id. at 71–73. That Garrison shut down a public hearing in the face of complaints that gains in
material circumstances were not keeping pace with gains in juridical equality represents, perhaps, an
ironic echo of history: 100 years earlier, his great-grandfather, famed abolitionist William Lloyd Garrison,
on the eve of Reconstruction, invoked state’s rights to oppose immediate and universal enfranchisement,
differing from radical abolitionists like Frederick Douglass. BLACK RECONSTRUCTION, at 200.
135

STRIKE THAT CHANGED NEW YORK, supra note 132, at 72.

136

Id. at 72–73. Then-California Attorney General Kamala Harris derided slogans calling for “schools
not jails” for failing to address the reason for “three padlocks on [her] front door.” Chicago Ideas,
Attorney General Kamala Harris: Innovation & Evolution in our Criminal Justice System, YouTube
(Feb. 12, 2013), available at https://www.youtube.com/watch?v=4bPRtLbyCjY#t=11m41s.
137

STRIKE THAT CHANGED NEW YORK, supra note 132, at 73.

138

Id.

139

Jerald Podair, “White” Values, “Black” Values: The Ocean Hill-Brownsville Controversy and
New York City Culture, 1965–1975, 59 RAD. HIST. REV. 36, 38 (1994) [hereafter Ocean-Hill Brownsville
Controversy].

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demand to control personnel, curricula, and finances—flexed its independence by ordering the
transfer of 18 white teachers it regarded as opposing its agenda of autonomous control.140 When
the local board refused to back down and the City refused to force the issue, the UFT went on
strike.141 That fall, in the face of continuing strikes, the City took the Ocean Hill district into a
trusteeship, and the following year, the experimental district was terminated.142 The experiment
was short-lived and not to be repeated.

B. Confinement in Schools: Truancy, Criminalization, and Racial Disparities
In the ensuing decades, an understanding of schools as confinement has become even
more salient: in addition to being compelled to attend failing schools while being locked out of
politics,143 the tools used to confine students in schools have become more biting, and the
schools themselves have become much more carceral.144

140

Id. at 39–40; see also STRIKE THAT CHANGED NEW YORK, at 1–5.

141

Ocean-Hill Brownsville Controversy, at 39–40.

142

Id. In this sense, Ocean Hill-Brownsville followed the trajectory of other Ford Foundation-funded
projects of this era. For example, in 1965, the Ford Foundation cut off support for Mobilization for Youth
(MFY), which operated on Manhattan’s Lower East Side, after MFY and its offshoot, Mobilization of
Mothers, began pressing more radical demands related to education using strikes, boycotts, and protests,
leading the Ford Foundation to balk at negative publicity. Sam Collings-Wells, Developing Communities:
The Ford Foundation and the Global Urban Crisis, 1958–66, 2020 J. GLOBAL HIST. 1, 16–17 (2020).
143

Since Rodriguez, discussions of the political dimensions of this issue have largely focused on state
and local school finance reform, and more recently, vouchers and school “choice.” See, e.g., James E.
Ryan and Michael Heise, The Political Economy of School Choice, YALE L.J., 2043, 2058–91 (2002). On
the racial motivation for school choice programs in the Brown period, see Helen Hershkoff & Adam S.
Cohen, School Choice and the Lessons of Choctaw County, 10 YALE L. & POL’Y REV. 1 (1992).
144

Building Abolition Futures, supra note 17, at 550 (“While these educational outcomes [funneling
targeted non-white and poor youth towards non-living wage work] are not new, the expansion of our
prison nation in the U.S. over the last three decades has strengthened policy, practice and ideological
linkages between schools and prisons.”).

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States confine students in schools by means of compulsory attendance laws. These laws
require children of certain ages to be physically present in state-run facilities (subject to specified
exceptions) for a certain number of days each year, and for a certain term of years. Failure to
comply with these laws subjects both children and parents to a range of penalties.
Massachusetts passed the first compulsory attendance law in 1852,145 and all other states
have since followed suit. The 1852 Massachusetts law required that persons between the ages of
8 and 14-years-old be in a place of learning for at least 12 weeks per year unless “otherwise
furnished with the means of education.”146 It did not specifically penalize truancy—generally
defined as an “accumulation of unexcused absences in excess of those allowed by state law”147—
but chronic absenteeism under the statute carried a penalty of $20.148 Since their inception,
compulsory attendance laws have been justified by reference to the necessity of education.149
145

An Act Concerning the Attendance of Children at School, 1867 Mass. Acts 240, available at
https://archives.lib.state.ma.us/actsResolves/1852/1852acts0240.pdf.
146

Id.

147

Jillian M. Conry & Meredith P. Richards, The Severity of State Truancy Policies and Chronic
Absenteeism, 23:1–2 J. EDUC. FOR STUDENTS PLACED AT RISK 187, 188 (2018) (explaining that truancy
refers to exceeding a defined number of unexcused absences, whereas chronic absenteeism is an absolute
cap on absences, excess of which constitutes chronic absenteeism regardless of excuse). Some states even
adjudicate juveniles as status offenders on the basis of habitual truancy as an extension of school
punishment. For example, in West Virginia, a student may receive an out-of-school suspension, and then
be found truant because of the resulting absences. In re Brandi B., 231 W. Va. 71 (2013). In this case, the
juvenile was put on probation as a result of the status offense, and the probation conditions required her to
stay in school through graduation (whereas the relevant state law otherwise permitted her to withdraw at
age 17). Id. at 85. The Supreme Court of West Virginia upheld both the suspension and the probation
conditions against a due process challenge.
148

An Act Concerning the Attendance of Children at School, 1867 Mass. Acts 240, available at
https://archives.lib.state.ma.us/actsResolves/1852/1852acts0240.pdf.
149

Com. v. Roberts, 159 Mass. 372, 374 (1893) (“The great object of these provisions of the statutes
has been that all the children shall be educated.”); Jillian M. Conry & Meredith P. Richards, The Severity
of State Truancy Policies and Chronic Absenteeism, 23:1–2 J. EDUC. FOR STUDENTS PLACED AT RISK
187, 190–91 (2018) (“[T]he persistence of such laws [targeting truant students and their parents]
underscores the perennial nature of concerns regarding high rates of absenteeism, the conviction that
consistent attendance in school is necessary for student success[.]”); Gershon M. Ratner, A New Legal

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From 1918 to the present, all states have had compulsory attendance laws that generally require
confinement of school-age children in school for part of the day for a certain number of days per
year.150 In Meyer v. Nebraska, the Court justified compulsory education laws as a corollary to the
parent’s “right of control” over a minor child.151 By the 1950s, nearly all states mandated school
attendance through secondary school.152 Penalties for truancy or chronic absenteeism are wide-

Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX. L. REV. 777, 827 n.208
(1985) (finding that despite secondary justifications, the primary justification has always been
educational, and arguing that “the confinement [must be] reasonably related to the primary educational
purpose.”).
150

Augustina Reyes, Compulsory School Attendance: The New American Crime, 10 EDUC. SCI. 75,
80 (2020); Lisa M. Lukasik, The Latest Home Education Challenge: The Relationship Between Home
Schools and Public Schools, 74 N.C. L. REV. 1913, 1918 (1996).
151

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“Corresponding to the right of control, it is the
natural duty of the parent to give his children education suitable to their station in life; and nearly all the
states, including Nebraska, enforce this obligation by compulsory laws.”).
152

Jillian M. Conry & Meredith P. Richards, The Severity of State Truancy Policies and Chronic
Absenteeism, 23:1–2 J. EDUC. FOR STUDENTS PLACED AT RISK 187, 191 (2018).

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ranging, including fines and imprisonment,153 denial of welfare benefits,154 community
service,155 loss or denial of driver’s license,156 and loss of custodial rights by taking the young

153

See, e.g., Code of Ala. § 16-28-12 (2006) (up to 90 days incarceration for parent who fails to send
or compel child to attend); Alaska Stat. Sec. 11.51.130(a)(3) (1994) (up to one year incarceration for
aiding, inducing, causing, or encouraging a child to be absent from school without cause); Cal. Penal
Code § 270.1 (2010) (up to one year incarceration for failing to reasonably supervise and encourage the
pupil’s attendance even after being offered support services to address truancy); Colo. Rev. Stat. 22-33108 (2016) (on contempt finding for failing to obey order to compel student’s attendance, parent may be
incarcerated “until the order is complied with”); 14 Del. C. § 2729 (2016) (up to 30 days incarceration for
third or subsequent offense of failing to make reasonable efforts to ensure attendance of child); ); Fla.
Stat. § 1003.27 (2012) (up to 60 days incarceration for parent as matter of strict liability for failure of
child to attend); Haw. Rev. Stat. § 302A-1135 (1996) (up to 30 days incarceration upon showing that
parent had not used “proper diligence to enforce the child’s regular attendance”); Idaho Code § 33-207
(2015) (up to 6 months in jail for as matter of strict liability for failure of child to attend); see also id.
(child may be fined up to five dollars per day of absence); 105 I.L.C.S. (Ill.) 5/26-10 (1977) (up to 30
days imprisonment); Indiana Code 35-50-3-4 (1978) (up to 60 days incarceration as a strict liability
matter for failing to ensure attendance); Iowa Code § 299.6 (2013) (up to 30 days incarceration for
violating an agreement to ensure attendance after initial truancy); Kentucky Rev. Stat. § 159.990 (2013)
(up to 90 days incarceration for failing to “send . . . to school” a child subject to compulsory attendance
law); La. Rev. Stat. § 17:221 (2011) (up to 30 days incarceration for failing to “send . . . to . . . school”
child subject to compulsory attendance law); 20-A Maine Rev. Stat. § 5053-A (2011) (fine of up to $250);
Md. Education Code Ann. § 7-301 (2017) (up to five days for failing to take reasonable efforts to ensure
child’s attendance); Mass. Gen. Law ch. 76, §§ 2, 4 (2008) (fine of up to $200 for inducing absence of
minor or $20 per day for failing to ensure attendance); Mich. Comp. Laws Ann. § 380.1599 (2015) (not
less than two nor more than 90 days incarceration as a matter of strict liability for child’s truancy); Minn.
Stat. § 120A.34 (2002) (fine of up to $300); Miss. Code Ann. § 97-5-39 (2018) (up to one year of
incarceration for knowingly or recklessly committing any act or omission that contributes to the
delinquency of any child); Missouri Rev. Stat. § 15-289 (1976) (up to 15 days incarceration for failing to
cause the child to regularly attend school); Mon. Code Ann. §§ 20-5-106 41-5-1512 (2019) (up to 45 days
for the child at a youth correctional facility); R.S. Neb. § 79-210 (2006) (up to 90 days incarceration);
N.J. Rev. Stat. § 18A:38-31 (2013) (fine of up to $100 for guardian failing to ensure appearance of child);
N.Y. Educ. Law § 3233 (2019) (up to 60 days imprisonment); N.C. Gen. Stat. § 115C-380 (2014) (up to
120 days incarceration as a matter of strict liability for failing to ensure appearance); N.D. Cent. Code §
15.1-20-03 (up to 30 days incarceration for parent for not making reasonable and substantial efforts to
ensure student attendance); 70 Okl. St. § 10-109 (2014) (temporary detention for the duration of the
school day by any law enforcement officer or administrator who finds student outside school during the
school day); S.C. Code Ann. § 59-65-20 (2012) (up to 30 days incarceration for parent or guardian who
“neglects to enroll” or “refuses to make [their] child . . . attend school”); Tex. Educ. Code Sec. 25.093 (up
to $500 per offense as of a fifth offense, where each day of absence may constitute a separate offense);
Utah Code Ann. 53G-6-208 (2019) (temporary detention for the duration of the school day by any law
enforcement officer or administrator who finds student outside school during the school day); 16 Vermont
S.A. § 1127 (2019) (fine of up to $1,000 for failing to cause child to attend school continually without
valid excuse); Rev. Code Wash. (ARCW) 28A.225.090 (2015) (a student defying a court order related to
return to school may be incarcerated for contempt or sentence to e-carceration); D.C. Code § 38-203
(2018) (up to five days incarceration for failure to ensure attendance of child).

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person into the foster care system, among others.157 Each year, in policing truancy, U.S. states:
remove more than 1,000 truant students from their own homes and place them in foster homes or
group homes, or incarcerate them in juvenile detention;158 incarcerate 150,000 parents or
students; and place 15,000 students on probation.159 Children are found to be educationally
neglected by their parents even when the parents have requested, but been denied, services for
their children;160 they are committed to juvenile facilities for truancy even when the family is
homeless and necessary interventions to help the household are not provided; 161 they are found

154

See, e.g., Mich. Comp. Laws. Ann. § 400.57b (2015). See also HELEN HERSHKOFF & STEPHEN
LOFFREDO, GETTING BY: ECONOMIC RIGHTS AND LEGAL PROTECTIONS FOR PEOPLE WITH LOW INCOME
438 (Oxford 2019) (reporting that as of July 2017, 37 states linked eligibility for assistance funded by the
Temporary Assistance for Needy Families authorization to some kind of attendance requirement).
155

See, e.g., 14 Del. C. § 2730 (2016) (providing range of coercive interventions, including
community service and possibly juvenile detention, for student for failing to attend if parent or guardian
made reasonable efforts); Md. Education Code Ann. § 7-301 (2017) (community service for parent); 70
Okl. St. § 2-2-103 (2014) (community service for child).
156

See, e.g., Ariz. A.C.A. § 6-18-222(b)(2) (2013); Fla. Stat. § 1003.27 (2012); O.C.G.A. (Georgia) §
20-2-690.2 (2004); La. Rev. Stat. § 17:221 (2011).
157

See, e.g., Fla. Stat. § 1003.27 (2012) (habitual truancy triggers “child-in-need-of-services” petition,
which can result in termination of parental rights); O.C.G.A. (Georgia) § 20-2-690.2 (2004) (same); Idaho
Code § 33-207 (2015) (same); Kansas S.A. § 72-3121 (2019) (same); N.M. Stat. Ann. § 22-12A-12
(2019) (same); 24 P.S. § 13-1333.3 (2018) (referral for possible disposition as a dependent child for a
second truancy violation within three year period of a first violation); R.I. Gen. Laws. Section 16-19-6
(2013) (providing for adjudication as “wayward child,” establishing grounds for family court
intervention).
158

Dana Goldstein, Inexcusable Absences: Skipping School is a Problem. But Why Is It a Crime?,
THE MARSHALL PROJECT (March 6, 2015), available at
https://www.themarshallproject.org/2015/03/06/inexcusable-absences [hereinafter Inexcusable Absences].
159

Augustina Reyes, Compulsory School Attendance: The New American Crime, 10 EDUC. SCI. 75,
95 (2020) [hereafter New American Crime].
160

See, e.g., In re Mary M., 3 Misc. 3d 1101(A) (N.Y. Fam. Ct. 2004) (child found to be
educationally neglected by parents on evidence of inadequate reading skills and truancy, despite mother’s
request for educational services).
161

See, e.g., Chimacum Sch. Dist. v. R.L.P., 448 P.3d 94 (Wash. Ct. App. 2019) (reversing 2017 truancy
petition that resulted in juvenile court order against child whose family was homeless).

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“guilty” of “unruly” conduct because of medical absences that are not sufficiently
documented.162
Absence from schools that teach and nurture is a manifest concern.163 But studies show
that criminalizing absenteeism has “not increased attendance rates”—rather, it “pushes students
away from school and forces poor and minority families deeper into poverty.”164 That the
criminalization approach has this perverse effect should not be surprising: Prime among the
factors that contribute to a child’s absence from school is poverty165—and the related problems
of housing insecurity or lack of housing, lack of transportation, and food insecurity—all of which
is exacerbated by engagement with the criminal punishment system.166 Nor is prosecution a
viable means of dealing with some common causes of absenteeism, such as medical conditions

162

See, e.g., In Interest of A.D.F., 176 Ga. App. 5 (1985).

163

See Farah Z. Ahmad & Tiffany Miller, The High Cost of Truancy, CENTER FOR AMERICAN
PROGRESS (Aug. 2015), available at https://cdn.americanprogress.org/wpcontent/uploads/2015/07/29113012/Truancy-report4.pdf (discussing the social costs of truancy and the
negative effects that school policy can have on student attendance).
164

Id. See also Dana Goldstein, Inexcusable Absences, THE NEW REPUBLIC (Mar. 6, 2015),
https://newrepublic.com/article/121186/truancy-laws-unfairly-attack-poor-children-and-parents (stating
that “g]etting tough on truancy doesn’t help students get an education—and it unfairly attacks the poor”);
Deborah Fowler et al., Class, Not Court: Reconsidering Texas’ Criminalization of Truancy, Texas
Appleseed (2015), available at
https://www.texasappleseed.org/sites/default/files/TruancyReport_All_FINAL_SinglePages.pdf
(discussing “disengagement and dropout” as harmful effects of criminalization on children).
165

See Marc Cutillo, Poverty’s Prominent Role in Absenteeism, EDUCATION WEEK (Feb. 28, 2013),
available at https://www.edweek.org/ew/articles/2013/02/27/22cutillo.h32.html (reporting results of
studies that show higher absentee rates in high-poverty schools and that [a]n overwhelming majority of
chronically absent kids are impoverished”).
166

ELLA BAKER CENTER FOR HUMAN RIGHTS, WHO PAYS? THE TRUE COST OF INCARCERATION ON
FAMILIES (2015) (describing how the experience of having a loved one criminalized—including not only
lost income but also contending with court costs, fees, and fines—itself saddles families with
unmanageable debts and drives families into poverty).

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that schools are unable to or do not accommodate.167 While many states have nominally moved
away from criminalization towards service-delivery models of responding to absenteeism, as
recently as 2013, 50 per cent of all juvenile status offense arrests were for truancy.168 Moreover,
most state laws that provide for incarceration permit incarceration only after an attempt has been
made at delivering some form of service or other support.169 This suggests that, in practice, the
“service-delivery” and openly carceral approaches may reinforce, rather than substitute for, one
another.170
Indeed, for decades, the regulation of truancy and youth delinquency has been an area in
which social services were subsumed within the criminal punishment system, creating a potent
tool for racial and class stratification.171 Under this model, police in poorer, mostly Black
neighborhoods conducted “interrogations of suspected truants” to investigate crimes or even to

167

Molly Redden, The Human Costs of Kamala Harris’ War On Truancy, HUFFPOST (Mar. 3, 2019),
available at https://www.huffpost.com/entry/kamala-harris-truancy-arrests-2020-progressiveprosecutor_n_5c995789e4b0f7bfa1b57d2e (describing the arrest of Cheree Peoples, whose daughter
“missed school because she was in too much pain to leave the house or was hospitalized for long-term
care” while she “[fought] with the school to get it to agree to additional accommodations under an
Individualized Education Plan”).
168

New American Crime, supra note 159, at 95.

169

See supra note 153. Indeed, it is the threat of incarceration that is intended to induce acceptance of
the offer of support.
170

The case of “Grace,” which is discussed in some detail below, see 206–215 and accompanying
text, illustrates the dynamic of the “service-delivery model reinforcing, rather than substituting for,
explicitly carceral regulation. Although Grace’s was not a truancy case, when she was put on probation
for a school-related incident, she received a classic “support” or “service-delivery” intervention: a
caseworker assigned to monitor her progress, set goals, and problem solve. Ultimately, however, her
caseworker responded to a lapse in Grace’s fulfillment of agreed criteria not with dialogue, nor with
contacting her school, but by reporting her to the court—triggering her incarceration.
171

See generally Elizabeth Hinton, Creating Crime: The Rise and Impact of National Juvenile
Delinquency Programs in Black Urban Neighborhoods, 41(5) J. URBAN HIST. 808 (2015) [hereafter,
Creating Crime].

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“identify potential criminals.”172 Early on, experts recognized that the rush to detect
“predelinquent” or “pre-criminal” youth had the effect of stigmatizing the targeted children, and
not simply in a metaphoric sense. Rather, the practice is known to generate for the children who
are labeled in this way “multiple handicaps: increased police surveillance, neighborhood
isolation, lowered receptivity and tolerance by school officials, and rejection by prospective
employers.”173 Notwithstanding these warnings, policymakers nevertheless pursued a zealous
“war on crime,” extending the read of the carceral state into childhood and public schooling in
ways that worsened conditions for Black, Brown, and poor youth.174 As Elizabeth Hinton has
documented, the consequence of merging social service provision with the criminal punishment
system has been to criminalize behaviors and to withhold supportive services along racial and
class lines.175
Nor is the enforcement of confinement in schools the end of the story. Parents and
guardians who try to escape the boundaries of school-district confinement—for example, by
enrolling a child in an out-of-district school where a family member might live—themselves face

172

Id. at 815.

173

U.S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL AND REHABILITATION
SERVICE, YOUTH DEVELOPMENT AND DELINQUENCY PREVENTION ADMINISTRATION, THE CHALLENGE
OF YOUTH SERVICE BUREAUS 5 (1973).
174

Creating Crime, supra note 171, at 814. (discussing the “relentless expansion of the carceral state
around [Black youth]”).
175

ELIZABETH HINTON, FROM THE WAR ON POVERTY TO THE WAR ON CRIME: THE MAKING OF
MASS INCARCERATION 221 (2016) [hereafter HINTON, WAR ON CRIME] (stating that the merger
“effectively criminalize[] black children and teenagers and decriminalize[] white youth”); see also id. at
222 (“[T]he social welfare arm . . . treated white and middle-income youth, [while] the punitive arm
handled young people from segregated urban neighborhoods.”).

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criminal punishment176 or civil sanction.177 And, while at school, students are subject to similar
criminalizing forces that perpetuate racial and class stratification.178

C. Carceral Schools as Extensions of the Carceral State
In recent decades, the public school has become ever more carceral in appearance and
function. As described by Loïc Wacquant, public schoolchildren in (what he calls) the
“hyperghetto” are:
[l]ike inmates, . . . herded into decaying and overcrowded facilities built like bunkers,
where undertrained and underpaid teachers, hampered by a shocking penury of
equipment and supplies—many schools have no photocopying machines, library, science
laboratory, or even functioning bathrooms, and use textbooks that are thirty-year-old
rejects from suburban schools—strive to regulate conduct so as to maintain order and
minimize violent incidents. . . . [M]ost [] resemble[] fortresses, complete with concertina
wire on outside fences, bricked up windows, heavy locks on iron doors, metal detectors at
the gates and hallways patroled by armed guards who conduct spot checks and body
searches . . . . [E]ssential educational programs have been cut to divert funds for more
weapons scanners, cameras, emergency telephones, sign-in desks, and security personnel
. . . . Indeed, it appears that the main purpose of these school is simply to ‘neutralize’
youth considered unworthy and unruly by holding them under lock for the day . . . . [T]he
carceral atmosphere of schools . . . habituates the children of the hyperghetto to the
176

See, e.g., Kaaryn Gustafson, Degradation Ceremonies and the Criminalization of Low-Income
Women, 3 UC IRVINE L. REV. 297, 326 (2013) (among other cases discussed, one mother spent a night in
jail, three years on probation, and was required to do 100 hours of community service, having been
charged with grand theft for enrolling her children in the schools in the district where her mother lived).
177

For example, in Bd. Of Educ. Of City of St. Louis v. Elam, 70 S.W.3d 448 (Mo. Ct. App. 2000), the
court affirmed the trial court’s judgment against Gloria Elam. Gloria Elam approached Mary O’Neal and
requested permission to use her address to enroll her daughter into the St. Louis Public School System.
The trial court ruled in favor of the Board and against Elam on violation of § 167.020 with respect to her
son in the amount of $3,994.36, and for fraudulent misrepresentation with respect to her daughter in the
amount of $35,730.00, which included $3,000.00 in punitive damages. See also Kelly Philips Erb, Would
You Lie About Where You Live To Get Your Child Into A Better School?, Forbes,
https://www.forbes.com/sites/kellyphillipserb/2016/11/06/would-you-lie-about-where-you-live-to-getyour-child-into-a-better-school/#14cf88912f48
178

Further, as discussed supra notes 253–255 and accompanying text, while confined in school on
threat of civil and criminal penalties with wide-ranging consequences, students confront conditions that
are, in some cases, disturbingly unsafe.

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demeanor, tactics, and interactive style of the correctional officers many of them are
bound to encounter[.]179
Statistics bear out this description of “supermax schools.”180 In New York City, for example, the
school-based police officers would, if they were a standalone department, be the fifth-largest
police department in the nation and have higher per capita concentration of officers than
Chicago, Los Angeles, Philadelphia, or Dallas.181
Moreover, the police stationed in, or called into, public schools function as a major force
for subordinating Black, Brown, and poor students.182 Approximately 70 percent of the nation’s
nearly 50,000 school-based police officers engage in school discipline enforcement, as well as or
instead of law enforcement.183 According to New York City data, Black students were 14 times
more likely, and Latinx students five times more likely, than white students to be arrested for

179

Loïc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3(1) PUNISHMENT &
SOC’Y 95, 108 (2001) [hereafter Deadly Symbiosis]; see also Creating Crime, supra note 171, at 815–16
(“[L]aw enforcement officials guarded schools like prisons, with monitored entrances, stationed patrol
cars, and flying helicopters. . . . [C]onditions [in] . . . urban schools increasingly resemble the penal
facilities where an increasing number of young black men would eventually find themselves.”).
180

ANNETTE FUENTES, LOCKDOWN HIGH: WHEN THE SCHOOLHOUSE BECOMES A JAILHOUSE 81
(2013).
181

GIRLS FOR GENDER EQUITY, NEW YORK CITY CAN’T WAIT: SHRINK POLICING IN THE NAME OF
PUBLIC HEALTH 2 (2020); see also CHILDREN’S DEFENSE FUND OF NEW YORK, “UNTHINKABLE:” A
HISTORY OF POLICING IN NEW YORK CITY PUBLIC SCHOOLS & THE PATH TOWARD POLICE-FREE
SCHOOLS 19 (2019) (“[T]he annual cost of the NYPD’s School Safety Division reaches $431 million,
[but] this does not capture the cost of police outside of the Division that patrol and surveil students in and
around schools, or the cost of criminalizing infrastructure like metal detectors and cameras.”) [hereafter
UNTHINKABLE]. For more background on the militarization of New York City schools, see NEW YORK
CIVIL LIBERTIES UNION, CRIMINALIZING THE CLASSROOM: THE OVER-POLICING OF NEW YORK CITY
SCHOOLS (2007).
182

For an overview of the critical race theory literature on the subject, see David Simson, Exclusion,
Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline, 61
UCLA L. REV. 506 (2014).
183

ALEX VITALE, THE END OF POLICING 43 (2017) [hereafter END OF POLICING].

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school-based incidents.184 Indeed, as the number of school-based police increased (and their
mandate expanded) over the past 50 years, it was all but inevitable that more minor disciplinary
matters previously handled within the school would result in arrests.185
The numbers bear out this common sense intuition. In 2015–2016, the last year for which
national data are available, 290,600 public school students were referred to law enforcement
agencies or arrested.186 Not only were Black students disproportionately arrested, but the
disproportion was worse than in previous years.187 Disturbingly, between 2013 and 2018, over
30,000 children under 10-years-old were arrested—many at school188—and in 2018 alone,
100,000 young people were brought before juvenile court judges for status offenses.189 Accounts
of numerous youth arrests have gone “viral,” including a recently revealed incident in which the

184

NEW YORK CITY SCHOOL-JUSTICE PARTNERSHIP TASK FORCE, KEEPING KIDS IN SCHOOL AND
OUT OF COURT: REPORT AND RECOMMENDATIONS (2013). Nor are these results outliers. Travis Riddle
and Stacey Sinclair, Racial Disparities in School-Based Disciplinary Actions are Associated with CountyLevel Rates of Racial Bias, 116 PNAS 17 (2019); Jason A. Okonofua and Jennifer L. Eberhardt, Two
Strikes: Race and the Disciplining of Young Students, 26 PSYCHOL. SCI. 617 (2015); Josh Kinsler,
Understanding the Black-White School Discipline Gap, 30 ECON. EDU. REV. 1370 (2011); Russell Skiba
et al., Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality
in School Discipline, 40 SCH. PSYCHOL. REV. 85 (2011).
185

Augustina Reyes, The Criminalization of Student Discipline Programs and Adolescent Behavior,
21 ST. JOHN'S J. LEGAL COMMENT. 73 (2006-2007); see also END OF POLICING, supra note 183, at 50.
186

U.S. DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS, 2015–16 CIVIL RIGHTS DATA
COLLECTION: SCHOOL CLIMATE AND SAFETY 3 (2016), available at
https://www2.ed.gov/about/offices/list/ocr/docs/school-climate-and-safety.pdf.
187

Id. Notably, between 2013 and 2016, the number of school arrests dropped, but the proportion of
Black students among arrests rose, suggesting a stubborn racism. Id.
188

Bill Hutchison, More than 30,000 children under age 10 have been arrested in the US since 2013:
FBI, ABC NEWS (Oct. 1, 2019), available at https://abcnews.go.com/US/30000-children-age-10-arrestedus-2013-fbi/story?id=65798787.
189

Dawn R. Wolfe, Thousands of Children on Parole Are Incarcerated Each Year for Nonviolent,
Noncriminal Behaviors, THE APPEAL (Sept. 4, 2020), available at https://theappeal.org/thousands-ofchildren-on-parole-are-incarcerated-each-year-for-nonviolent-noncriminal-behaviors/.

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police handcuffed an eight-year-old, three-and-a-half-foot tall student whose wrists were too
small to be constrained by the handcuffs.190 Sometimes the arrest is outsourced: it is tragically
common for school officials to report Central American students to Immigration and Customs
Enforcement, on the purported ground of gang activity.191 In addition to direct subordination of
those arrested, the evidence suggests exacerbates racial disparities in educational attainment
school-wide: exploiting differences in timing in the rollout of a school-based police surge
program in the City, researchers determined that “the negative impact of aggressive policing on
Black male students’ [test scores] is large enough to cancel out the potential benefits of other
(often costly) interventions” (such as improving teacher quality).192 The life-long harms caused
by arrests (or, to varying degrees, other forms of discipline) at school are extremely well-

190

Eric Levenson and Tina Burnside, Key West Police Arrested an 8-Year-Old at School. His Wrists
Were Too Small for the Handcuffs, CNN (Aug. 11, 2020), available at
https://www.cnn.com/2020/08/11/us/8-year-old-boy-key-west-arrest-trnd/index.html.
191

Hannah Dreier, He Drew His School Mascot—and ICE Labeled Him a Gang Member: How High
Schools Have Embraced the Trump Administration’s Crackdown on MS-13, and Destroyed Immigrant
Students’ American Dreams, PROPUBLICA (Dec. 27, 2018) available at
https://features.propublica.org/ms-13-immigrant-students/huntington-school-deportations-ice-honduras/
(describing school resource officer reporting a student’s doodle, resulting eventually in his deportation);
see also Randy Capps, Jodi Berger Cardoso, Kalina Brabeck, Michael Fix, and Ariel G. Ruiz Soto,
Immigration Enforcement and the Mental Health of Latino High School Students, Migration Policy
Institute (Sept. 2020) (finding a majority of Latinx high school students have diagnosable mental health
conditions caused by deportation-related fear, anxiety, and depression); Alice Speri, From School
Suspension to Immigration Detention: For Immigrant Students on Long Island, Trump’s War on Gangs
Means the Wrong T-Shirt Could Get You Deported, The Intercept (Feb. 11, 2018), available at
https://theintercept.com/2018/02/11/ice-schools-immigrant-students-ms-13-long-island/.
192

Joscha Legewie, Chelsea Farley, and Kayla Stewart, Aggressive Policing and Academic Outcomes
Examining the Impact of Police “Surges” in NYC Students’ Home Neighborhoods, RESEARCH ALLIANCE
FOR NEW YORK CITY SCHOOLS: POLICY BRIEF 4 (2019); see also END OF POLICING, supra note 183, at 49
(describing that, when No Child Left Behind sparked an increase in school disciplinary incidents in North
Carolina, racial disparities in suspension worsened). Notably, this effect is not limited to the pool of
people arrested or otherwise criminalized, but reflects the overall effect on testing score by race at a given
school. See also Subini Annamma, Deb Morrison, and Darrell Jackson, Disproportionality Fills in the
Gaps: Connections Between Achievement, Discipline, and Special Education in the School-to-Prison
Pipeline, 5(1) BERKELEY REV. EDU. 53 (2014).

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documented,193 and create further barriers to public benefits, housing, and employment.194 Yet
even without incidents such as arrests or discipline, the mere presence of police can have a
negative impact on students’ educational outcomes.195
But educational carceralism is not limited to police arresting students in schools.
Teachers and administrators also play an important role in policing of students, and to similar
negative effect. Subini Annamma has theorized a “pedagogy of pathologization,” which
responds to students’ vulnerability with “hyper-surveillance” and, ultimately, with the
“criminalizing of difference.”196 Many school discipline codes have incorporated elements of
criminal law, effectively requiring teachers to do law enforcement work.197 In an increasing array

193

See Jason A. Okonofua, Gregory M. Walton, and Jennifer L. Eberhardt, A Vicious Cycle: A SocialPsychological Account of Extreme Racial Disparities in School Discipline, 11 PERSPS. PSYCHOL. SCI. 381
(2016); Devah Pager, Bruce Western, and Naomi Sugie, Sequencing Disadvantage: Barriers to
Employment Facing Young Black and White Men with Criminal Records, 623 ANN. AM. ACAD. POL.
SOC. SCI. 195 (2009); Paul Hirschfield, Another Way Out: The Impact of Juvenile Arrests on High School
Dropout, 82 SOC. EDU. 368 (2009); see also Deadly Symbiosis, supra note 179, at 115 (“46 percent of the
inmates in New York state prisons issue from neighborhoods served by the 16 worst public schools of the
city.”).
194

See HERSHKOFF & LOFFREDO, supra note 154, at 12 (discussing effect of criminal records on
eligibility for benefits funded through the Temporary Assistance for Families Program); 106 (discussing
effect of criminal records on employment); 650– 51 (discussing effect of criminal records and public
housing);
195

Paige Fry, More Than 400 People Join March to Call for Removal of Police in Chicago Schools,
Chicago Tribune (Aug. 22, 2020), available at https://www.chicagotribune.com/news/breaking/ctsaturday-protests-chicago-police-cps-whitney-young-20200823-dytuu33cmjdi5alx4th53hagye-story.html
(quoting a student who said, “I got into this school, thinking, hey maybe I’ll have a chance . . . . What’s it
worth when I’m too scared to ask an SRO (school resource officer) to move out of a space in the library
so that I can complete an assignment because my hands are shaking?”).
196

SUBINI ANNAMMA, PEDAGOGY OF PATHOLOGIZATION: DIS/ABLED GIRLS OF COLOR IN THE
SCHOOL-PRISON NEXUS 49 (2018). See also ERICA MEINERS, RIGHT TO BE HOSTILE: SCHOOLS, PRISONS,
AND THE MAKING OF PUBLIC ENEMIES 46 (2007) (“The role of teaching (and social work) was to execute
class-based surveillance and monitoring.”) [hereafter RIGHT TO BE HOSTILE]. For another, even more
disturbing, account, some have argued that teachers in certain districts have responded to pressure to
improve test scores by using disciplinary tools to remove from the classroom students anticipated to
perform poorly on standardized tests. END OF POLICING, supra note 183, at 51.
197

RIGHT TO BE HOSTILE, supra note 196, at 3, 35.

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of circumstances, teachers are required to report misbehavior to police.198 Moreover, schools
have adopted prison discipline methods. In Illinois, for example, school officials placed students
in solitary confinement (“quiet rooms”) 20,000 times over 15 months—often, prone and shackled
(“restrained”) to the floor.199 Pedagogically and technologically informed by the encroaching
carceral logic, teachers are, in some schools, charged with suppressing student will as much (or
more than) with helping students develop capabilities necessary to live meaningfully selfdetermined lives.200 As Erica Meiners explains:
Those disenfranchised, for example, the youth who see this connect[ion] between schools
and jails and the correspondingly narrow discussions of what counts as an educational
issue, have a right to be hostile. Anger, an ‘outlaw emotion,’ is a legitimate response to
injustice or violence. But what happens when individuals who are racially profiled and
tracked toward special education, undereducated in low-resource schools that possess
metal detectors and have drug searches by the on-site school police stations, one guidance
counselor for 500 students, and a low track record of graduation or for placing students in
a community college or university, get angry? . . . What mechanisms, built into the
expanding [prison-industrial complex], transform these legitimate responses of anger and
critique into a dysfunction or a pathology? The response and the analysis of someone
who clearly has the moral right but not a legal right to be hostile, gets translated from a
critique into a youth with an anger management problem. . . . [Y]outh who are caught up
in the intersections between schools and jails are [] constructed as dangerous, uneducable
public enemies, requiring containment[.]201

198

Id.

199

Lakeidra Chavis, Jennifer Smith Richards, and Jodi S. Cohen, There’s an Emergency Ban on
Isolated Timeouts in Illinois Schools. What’s Next?, PROPUBLICA ILLINOIS (Nov. 19, 2020), available at
https://www.propublica.org/article/illinois-students-school-seclusion-rooms-state-board-educationmeeting-isbe.
200

Id. at 45 (“[T]he white lady teacher is charged, implicitly, with colonizing her ‘native’ students
and molding them into good citizens of the republic.”).
201

Id. at 5–6 (emphasis in original); see also id. at 28 (“[I]f one does not have the right to be hostile,
where does the anger go when it is ‘a grief of distortions between peers, and its object is change.’”),
quoting AUDRE LORDE, SISTER OUTSIDER: ESSAYS AND SPEECHES 129 (1984).

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In addition to these legal, institutional, and ideological drivers, one cannot underestimate
the effects of austerity, and the state’s inability or refusal to fund social services for households
that subsist on minimum wage jobs, temporary jobs, or no jobs at all (while linking such services
to carceral methods of surveillance).202 Instead, public moneys are directed toward punitive
programs and personnel. Relying on interviews with school and child welfare officials, Kelley
Fong has argued that “concerned professionals with limited options end up turning to an agency
with coercive authority” to address classroom problems, because that agency (often Child
Protective Services) “is what remains.”203 In so doing, educators often “channel families to state
surveillance that threatens child removal” and may end up “criminalizing marginalized youth in
the process.”204 Ultimately, however, families are often left “experienc[ing] surveillance without
material support,” with the end of “exacerbat[ing] social stratification” because the surveillance
leads to some form of criminalization.”205
The story of “Grace,” a 15-year-old Black girl who attends high school in a suburb to the
north of Detroit, MI, underscores these dynamics. Grace, whose pandemic-era transition to

202

See Dorothy E. Roberts, Abolishing Policing Also Means Abolishing Family Regulation, THE
IMPRINT (June 16, 2020), available at https://imprintnews.org/child-welfare-2/abolishing-policing-alsomeans-abolishing-family-regulation/44480.
203

Kelley Fong, Getting Eyes in the Home: Child Protective Services Investigations and State
Surveillance of Family Life, 85(4) AM. SOC. REV. 610, 629 (2020) [hereafter Eyes in the Home].
204

Id. at 627, 630. Dorothy Roberts has similarly argued:
All institutions in the United States increasingly address social inequality by punishing
the communities that are most marginalized by it. Systems that ostensibly exist to serve
people’s needs — health care, education, and public housing, as well as public assistance
and child welfare — have become behavior modification programs that regulate the
people who rely on them, and these systems resort to a variety of punitive measures to
enforce compliance.
Dorothy E. Roberts, Digitizing the Carceral State, 132 HARV. L. REV. 1695, 1700 (2019).
205

Eyes in the Home, supra note 203, at 629, 630.

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online classes was made more difficult because of “a history of mental health issues and living
with disabilities,”206 slept through an online class one morning in May 2020.207 The month
before, an Oakland County Circuit Court Judge had sentenced Grace to probation, the terms of
which included not missing any coursework.208 The caseworker assigned to monitor Grace—one
of several forms of surveillance imposed as part of her probation—informed the court that Grace
had missed class.209 On May 14, 2020, the judge sentenced Grace to juvenile detention for
violating probation.210
To the extent that Grace’s behavior indicated a problem, it could have been understood as
one of inadequate service provision, rather than one of misbehavior. Grace, who has an
Individualized Education Plan (IEP) because of her Attention Deficit Hyperactivity Disorder and
mood disorder, had not been receiving the support specified in her IEP since the start of the
pandemic.211 In light of the circumstances and the onerous terms of the probation, Grace and her

206

Letter from Rep. Ayanna Pressley et al. to Attorney General Barr and [Education] Secretary
DeVos, dated July 29, 2020, available at
https://pressley.house.gov/sites/pressley.house.gov/files/2020%2007%2029%20Grace%20Michigan%20
Letter%20ED%20DOJ%20v7%20vF.pdf [hereafter Pressley Letter].
207

Jodi S. Cohen, A Teenager Didn’t Do Her Online Schoolwork. So a Judge Sent Her to Juvenile
Detention., PROPUBLICA (July 14, 2020), available at https://www.propublica.org/article/a-teenagerdidnt-do-her-online-schoolwork-so-a-judge-sent-her-to-juvenile-detention [hereafter A Teenager Didn’t
Do Her Online Schoolwork].
208

Id. The case that resulted in the imposition of probation arose from two incidents dating back to
the fall of 2019, one of which involved taking another student’s phone at school (the other was unrelated
to school).
209

Id.

210

Id.

211

Under regulations implementing the Individuals with Disabilities Education Act (IDEA), Grace’s
school is required to provide this support. 34 C.F.R. § 300.110, §§ 300.121–300.156 (2013); see also 20
U.S.C. §§ 1401 et seq. See generally HERSHKOFF & LOFFREDO, supra note 154, at 450– 52(setting out
requirements). See Pressley Letter, supra note 206 (“[R]eports indicate that none of her accommodations,
which are guaranteed by federal law, were in place.”).

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mother had already told the caseworker that Grace felt “anxious” and “overwhelmed.”212
Nonetheless, Grace’s teacher reported that she was performing comparably to her classmates
during the pandemic.213 The caseworker did not any of these contextual facts before reporting
Grace to court, because she never contacted the school before making her report.214 She instead
functioned as one more instrument of criminalization targeting Grace, against the backdrop of
deprivation. Statistics suggest that Grace’s story is the norm for Black girls—especially Black
girls with disabilities.215 Indeed, the dynamics illustrated by Grace’s odyssey seemed poised to
worsen as the pandemic forces many schools to go virtual, thereby expanding opportunities for
schools to surveil and punish children and families in unprecedented ways.216

.

212

A Teenager Didn’t Do Her Online Schoolwork, supra note 207.

213

Id.

214

Id. On August 11, the Michigan judge terminated Grace’s probation, finding she had made
adequate progress. See Jodi S. Cohen, Case Closed: Michigan Judge Removes Grace, Black Teen Jailed
for Not Doing Online Schoolwork, From Probation, PROPUBLICA ILLINOIS (Aug. 11, 2020),
https://www.propublica.org/article/case-closed-michigan-judge-removes-grace-black-teen-jailed-for-notdoing-online-schoolwork-from-probation#987309.
215

SENTENCING PROJECT, INCARCERATED WOMEN AND GIRLS: FACT SHEET 4 (2019) (reporting that
Black girls “are three-and-a-half times as likely” as white girls to be incarcerated), available at
https://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf;
Daniel Losen et al., Disturbing Inequities: Exploring the Relationship Between Racial Disparities in
Special Education Identification and Discipline, 5(2) J. APPLIED. RES. ON CHILDREN: INFORMING POLICY
FOR CHILDREN AT RISK 15, 1–2 (2014) (“Black students with disabilities constituted 19% of all students
with disabilities, yet they represented 50% of students with disabilities in correctional institutions.”).
216

Bianca Vázquez Toness, Your Child’s a No-Show at Virtual School? You May Get a Call from the
State’s Foster Care Agency, BOSTON GLOBE (Aug. 15, 2020), available at
https://www.bostonglobe.com/2020/08/15/metro/your-childs-no-show-virtual-school-you-may-get-callstates-foster-care-agency/ (describing calls to child welfare agency after missing class); Police Called on
Student for Missing Zoom Call: Teacher Claims It’s Child Abuse, INFORMED AMERICAN (Aug. 20, 2020),
available at https://www.informedamerican.com/police-called-on-student-for-missing-zoom-call-teacherclaims-its-child-abuse/ (report made based on behavior of sibling of student, where sibling’s conduct was
visible to teacher in background during class); Mary Retta, Schools are Enforcing Dress Codes During
Online Classes, TEEN VOGUE (Aug. 20, 2020), available at https://www.teenvogue.com/story/schoolszoom-dress-code (describing deans threatening suspension based on observation of student dress while at
home); Reuters (@Reuters), Twitter (Aug. 19, 2020, 12:35 PM),

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In sum, students from less wealthy, less white communities not only are locked into
failing schools and their families locked out of politics to change conditions in those schools, but
are also criminalized (along with their families) by laws that compel their attendance. Once in
the classroom, policing and subjugation continue. If education is understood as a process that
helps students develop their capacities to live meaningfully self-determined lives,217 then the
public schooling offered to Black, Brown, and poor children—preparation for a life of menial
labor and criminal punishment—fails utterly.218 The focus on surveillance and punishment
within schools bears an echo of the concept of teaching freedman they were “free only to
labor.”219 Carceral schools depend on a system of discipline that is aimed not at fostering the
skills and capabilities that justify the compulsory nature of education, but rather of “reproducing
[] social relationships” of hierarchy, 220 understood as training for low-wage work and cementing
in place constricted possibilities as the result of the child’s unequal liberty.221

https://twitter.com/Reuters/status/1296123510088032256 (“Five kids and one cell-phone hotspot; a lowincome family in Los Angeles is trying to ensure its kids can learn virtually”); see also Frank Edwards,
Family Surveillance: Police and Reporting of Child Abuse and Neglect, 5 J. SOC. SCI. 50, 51 (2019)
(noting that even “low-level” law enforcement contact increasingly results in child welfare
investigations).
217

See generally JEROME S. BRUNER, THE PROCESS OF EDUCATION (1960).

218

Deadly Symbiosis, supra note 179, at 108; see also Creating Crime, supra note 171, at 816
(“[U]rban schools increasingly resemble the penal facilities where an increasing number of young black
men would eventually find themselves.”).
219

See supra note 115 and accompanying text.

220

PAUL WILLIS, LEARNING TO LABOUR: HOW WORKING CLASS KIDS GET WORKING CLASS JOBS
69, 66 (1977).
221

Id. at 212 (discussing the preference of employers for “more disciplined and frightened” students
rather than “bright-eyed, enthusiastic” students who are “trying to expand the full range of [their] human
talent”); see also RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND
OPPOSITION IN GLOBALIZING CALIFORNIA 77, 161 (2007) (explaining that where “[c]hanges in public
policy with respect to the working poor contributed to the abandonment of entire segments of labor,”
students who have “learned to labor” may be “educated for nothing at all” because of limited or non-

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III. A Liberty-Based Approach to Quality Public Schooling
Unfortunately, our account of America’s public schools covers familiar territory. The
system’s basic failings, and their severe racial and class effects on hundreds of thousands of
Brown, Black, and poor children, are well documented in court papers,222 foundation reports,223
scholarly articles,224 and the popular press.225 #BlackLivesMatter and the horrific videos of

existent employment prospects). Indeed, the experience of criminalization, and particularly the burden of
criminalization on Black people, has striking labor-market effects. Recent empirical evidence suggests
that the decline in the share of union membership accounted for by Black workers in recent decades is
likely due in part to criminalization, because past criminalization increases employer power over workers,
reduces their likelihood of quitting notwithstanding job dissatisfaction, reduces odds of joining unions,
and reduces odds of winning NLRB elections for unions with criminalized members. Adam Reisch and
Seth J. Prins, The Disciplining Effect of Mass Incarceration on Labor Organization, 125(5) AM. J. SOC.
1303 (March 2020).
222

See, e.g., supra notes 253–255 and accompanying text; See Class Action Complaint, Cook et al. v.
Raimondo, 1:18-cv-00645, ECF No. 1 (D.R.I. Nov. 28, 2018); Press Release, Landmark Lawsuit on
Behalf of Public School Students Demands Basic Education Rights Promised in State Constitution,
ACLU (May 17, 2000), available at https://www.aclu.org/press-releases/landmark-lawsuit-behalf-publicschool-students-demands-basic-education-rights (summarizing conditions cited in complaint in landmark
case of Williams v. California).
223

See, e.g., MINER P. MARCHBANKS III AND JAMILIA J. BLAKE, ASSESSING THE ROLE OF SCHOOL
DISCIPLINE IN DISPROPORTIONATE MINORITY CONTACT WITH THE JUVENILE JUSTICE SYSTEM: FINAL
TECHNICAL REPORT (2018); Monique W. Morrie, Race, Gender, and the School-to-Prison Pipeline:
Expanding Our Discussion to Include Black Girls, AFRICAN AMERICAN POLICY FORUM (2012); DANIEL
J. LOSEN AND RUSSELL J. SKIBA, SUSPENDED EDUCATION: URBAN MIDDLE SCHOOLS IN CRISIS (2010);
224
See, e.g., MONIQUE W. MORRIS, PUSHOUT: THE CRIMINALIZATION OF BLACK GIRLS IN SCHOOLS
(2018); Wendy Haight, Misa Kayama, and Priscilla Ann Gibson, Out-of-School Suspensions of Black
Youths: Culture, Ability, Disability, Gender, and Perspective, 61 SOC. WORK 3 (July 2016); Subini
Annamma, Deb Morrison, and Darrell Jackson, Disproportionality Fills in the Gaps: Connections
Between Achievement, Discipline, and Special Education in the School-to-Prison Pipeline, 5(1)
BERKELEY REV. EDU. 53 (2014); Sarah Aldridge, Criminalization and Discrimination in Schools: The
Effects of Zero Tolerance Policies on the School-to-Prison Pipeline for Black Girls, 9 AISTHESIS 1
(2018); AUGUSTINA REYES, DISCIPLINE, ACHIEVEMENT, AND RACE: IS ZERO TOLERANCE THE ANSWER?
(2006); Russell Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in
School Punishment, 34 URB. REV. 317 (2002).
225

Erica L. Green, How Black Girls Get Pushed Out of School, N.Y. TIMES (Apr. 4, 2020), available
at https://www.nytimes.com/2020/04/04/us/politics/black-girls-school-racism.html; Editorial Board, Why
Is Va. Treating Its Students—Especially Its Black Students—Like Criminals?, Wash. Post (Oct. 22, 2017),
available at https://www.washingtonpost.com/opinions/from-the-classroom-to-the-courts-in-va-too-

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police officers suffocating Black men to death have galvanized attention on the racism endemic
in the criminal enforcement system and energized calls for the redeployment of funds for
policing, jails, and prisons to more humane ends. Certainly, those funds could be used to
#FreeGrace—to reimagine public schools as sites that allow children to grow and flourish.226
But surely the judicial system needs to see no additional videos of police arresting children for
tantrums, outbursts, not doing homework, or absence to recognize the unacceptable and unequal
treatment of Black, Brown, and poor children in carceral schools.
This Part picks up where the Sixth Circuit in the now-vacated decision in Gary B. left off:
justifying a right to public schooling in the liberty provision of the Due Process Clause, but
understood within the frame of abolition constitutionalism. We celebrate the decision in Gary B.
and the resulting settlement that will expand educational opportunities for current students who
do not have the luxury of waiting for incremental approaches or long-term aspirations to be put
in place. But our aim is not simply to defend a right to educational opportunity sufficient to

many-students-get-treated-like-criminals/2017/10/22/119cda9a-b5d9-11e7-9e58e6288544af98_story.html; Editorial Board, Criminalizing Children at School, N.Y. Times (Apr. 18,
2013), available at https://www.nytimes.com/2013/04/19/opinion/criminalizing-children-atschool.html?searchResultPosition=9; School-To-Prison Pipeline: A Curated Collection of Links, THE
MARSHALL PROJECT (2020), available at https://www.themarshallproject.org/records/67-school-toprison-pipeline.
226

In calling for such a reimagining, we are aligned with students who have organized against
carceralism in their own schools. See, e.g., After 7 School Integration Strikes, NYC Students Get Rare
Public Meeting With Ed Department Officials, Asking ‘How Much Longer Will We Have to Wait?’, THE
74 MILLION (Feb. 3, 2020), available at https://www.the74million.org/article/after-7-school-integrationstrikes-nyc-students-get-rare-public-meeting-with-ed-department-officials-asking-how-much-longer-willwe-have-to-wait/ (describing efforts by Teens Take Charge and IntegrateNYC to eliminate punitive
practices and remove carceral infrastructure and personnel from schools, as part of a broader program of
promoting educational equity); Danny Katch, NYC Students Get Metal Detectors Expelled, SOCIALIST
WORKER (Jan. 19, 2018) available at https://socialistworker.org/2018/01/19/nyc-students-get-metaldetectors-expelled (describing walkout by 500 students at Bayard Rustin Educational Complex that, along
with other efforts, succeeded in stopping City plan to install metal detectors in the school). See also infra
notes 412–432 and accompanying text.

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ensure minimal literacy needed for democratic participation, especially when the current
governance structure tends to suppress the value of Black, Brown, and poor citizens.227 Rather,
our aim is to lay the foundation for a right to quality public schooling that explicitly counters the
current role of education in perpetuating the children’s subordinated and marginalized status. In
the 1954 decision in Bolling v. Sharpe, the Court held that a Black child’s liberty interest is
violated when compelled by law and under threat of punishment to attend segregated public
schools.228 Today segregation is de facto, but the force imposed upon Black, Brown, and poor
children to attend substandard public schools remains de jure and the violation of equal liberty
persists. Our liberty-based argument, drawing from the theory of abolition constitutionalism,
aims to dismantle the public school as an agent of a carceral state—schools that detain children
without pedagogic purpose and that entrench the children’s caste status by perpetuating structural
227

See generally, e.g., JOE FEAGIN, WHITE PARTY, WHITE GOVERNMENT: RACE, CLASS, AND U.S.
POLITICS (2012) (describing “our undemocractic political system”). For explorations of the specific ways
that the criminal punishment system disenfranchises, alienates, and subjugates Black, Brown and poor
people, see TRACI BURCH, TRADING DEMOCRACY FOR JUSTICE: CRIMINAL CONVICTIONS AND THE
DECLINE OF NEIGHBORHOOD POLITICAL PARTICIPATION 75–104 (2013); AMY E. LERMAN & VESLA M.
WEAVER, ARRESTING CITIZENSHIP: THE DEMOCRATIC CONSEQUENCES OF AMERICAN CRIME CONTROL
199–231 (2014); See, e.g., Joe Soss and Vesla Weaver, Police Are Our Government: Politics, Political
Science, and the Policing of Race–Class Subjugated Communities, 20 ANN. REV. POL. SCI. 565 (2017);
WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 244–81 (2011).
228

See David E. Bernstein, Bolling, Equal Protection, Due Process, and Lochnerphobia, 93 GEO. L.
J. 1253, 1255 (2005) (stating “[t]he only novelty in Bolling is the idea that forcing blacks to attend
segregated schools infringed on a liberty right protected by the Fifth Amendment’s Due Process Clause”).
For a recent and creative interpretation of the relationship between the due process and equality clauses,
see Deborah Hellman, The Epistemic Function of Fusing Equal Protection and Due Process, 28 WM. &
MARY BILL RTS. J. 383, 392 (2019):
Perhaps the intertwining of equal protection and due process rests in judicial humility. . . . The
justification for fusion of equal protection and due process on this view is Epistemic in nature.
Due process claims assert that a fundamental right has been infringed, and in order to adjudicate
these claims, we need to know what rights are truly fundamental.68 Perhaps equality-based
notions can help. Similarly, claims that assert a violation of equal protection require courts to
determine if the law distinguishes among people on the basis of a suspect trait.69 But what traits
should be treated as suspect? Perhaps paying attention to who can and cannot exercise
fundamental liberties will be informative.

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disadvantage for arbitrary reasons of race and class. In their place, we seek to reimagine public
schools as democratic institutions where children can flourish and enjoy lives of equal liberty.

A. Liberty as Protection Against Unjustified Restraint
At the federal level, the U.S. Constitution protects against deprivations of “life, liberty, or
property, without due process of law” at the hands of either the federal or any state
government.229 The protections of the Due Process Clause apply to deprivations of liberty in the
civil context as well as pursuant to criminal laws.230 As the Supreme Court has repeatedly
affirmed, “[l]iberty from bodily restraint” is the “core of the liberty protected by the Due Process
Clause from arbitrary governmental action.”231 This liberty interest encompasses, but is not
limited to, “freedom of movement.”232 In the context of civil confinement, the Court has held
that this interest requires the State to provide “safe conditions.”233 The Court, moreover, has
explicitly recognized that students in public school benefit from the “historic liberty interest” in
being “free from . . . unjustified intrusions on personal security,” which encompasses “freedom
from bodily restraint and punishment. 234

229

U.S. Const., amends. V, XIV § 1.

230

Specht v. Patterson, 386 U.S. 605, 608 (1967) (“[C]ommitment proceedings whether denominated
civil or criminal are subject . . . to the Due Process Clause.”).
231

See, e.g., Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1972) (Powell, J., concurring in
part and dissenting in part).
232

Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982) (recognizing liberty interest in “freedom of
movement” and holding that it “survive[s] involuntary [civil] commitment”).
233

Id. (holding that it is “unconstitutional to confine the involuntarily committed . . . in unsafe
conditions”); see also Hutto v. Finney, 437 U.S. 678 (1978) (recognizing this right in the context of penal
confinement).
234

Ingraham v. Wright, 430 U.S. 651, 673–74 (1977); see also Goss v. Lopez, 419 U.S. 565, 575
(1975) (recognizing student has liberty interest triggering due process protection where suspension “could

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In Meyer v. Nebraska, the Court acknowledged that a person has a liberty interest “to acquire
useful knowledge.”235 This liberty interest directly affects the nature and scope of the state’s
power to mandate public schooling. Because “[t]he hours which a child is able to devote to study
. . . are limited,”236 laws imposing compulsory education are conditioned on the state’s providing
the student with meaningful opportunities to learn, for a child’s attendance at school cuts off
other options for acquiring comparable skills and knowledge elsewhere. In later cases, the Court
has stated that an individual’s liberty interests are “not absolute.”237 In determining whether a
state-imposed restriction violates an individual’s liberty interests, courts “balance the liberty of
the individual and the demands of an organized society.”238 Under this balancing approach,
restrictions on liberty will generally be upheld only if they are “reasonably related to legitimate
government objectives,”239 a standard the Court first articulated in Jackson v. Indiana.240 But the

seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with
later opportunities for higher education and employment.”).
235

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (stating that “[w]ithout doubt” liberty “denotes not
merely freedom from bodily restraint but also the right of the individual . . . to acquire useful
knowledge”).
236

Meyer v. Nebraska, 262 U.S. 390, 398 (1923) (“The hours which a child is able to devote to study
in the confinement of school are limited.”).
237

Youngberg, 457 U.S. at 320.

238

Id. (internal quotations omitted); see also Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J.,
dissenting) (noting that the nation has struck a balance between “liberty of the individual” and “the
demands of organized society”).
239

Id.; see also id. at 322 (rejecting the “’compelling’ or ‘substantial’ necessity tests the Court of
Appeals would require a State to meet to justify use of restraints or conditions of less than absolute
safety.”).
240

406 U.S. 715, 738 (1972) (holding that, where a criminal defendant was involuntarily and
indefinitely committed to a state mental institution before trial because of incapacity, “due process
requires that the nature and duration of commitment bear some reasonable relation to the purpose for
which the individual is committed”).

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Meyer principle remains: Although a state may, consistent with due process, compel a young
person to attend school, mandating attendance on threat of criminal or civil penalties triggers an
obligation on the state’s part to provide the student with a meaningful opportunity to learn. And,
insofar as the liberty deprivation is justified by the governmental objective of providing
education, the failure to adequately provide students with the education ought to render the
requirement of compulsory attendance unconstitutional.
B. Liberty as a Source of the State’s Affirmative Duty to Provide Education
The federal Constitution generally is regarded as a charter of negative rights against the
government, and not of positive duties by the government to its citizens.241 Thus, identifying
liberty interests as the source of an affirmative duty of the state to provide education at a certain
level or quality is analytically different from the more conventional situation of lifting of bans or
disabilities that impede liberty, as the Court did in Obergefell when recognizing a liberty right to
marriage equality as a matter of self-definition.242 But our proposition is doctrinally well
established: the state’s right to restrain a person’s liberty is limited by the purpose of the
restraint, and some kinds of detention to be constitutionally valid may require the affirmative
provision of goods or services, and public schooling falls comfortably within this category.
Thus, in Youngberg v. Romeo, a case concerning the conditions of civil commitment, the
Court held that the liberty provision of the Due Process Clause required the state to provide
“such training as may be reasonable in light of respondent's liberty interests in safety and

241

Robin West, Reconstructing Liberty, 59 TENN. L. REV. 441, 446–47 (1992) (“It is liberty or
freedom from, not liberty or freedom to, which the Bill of Rights protects.”).
242

Obergefell, 576 U.S. at 665–67.

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freedom from unreasonable restraints.”243 Drawing on its earlier decision in Jackson v. Indiana,
the Court found that due process required the state to provide “minimally adequate training” to
involuntarily committed persons with developmental disabilities. The Court concluded that, to
“prevent unreasonable losses of additional liberty as a result of [the involuntary]
confinement,”244 the facility had certain affirmative duties:
[T]he State is under a duty to provide respondent with such training as an
appropriate professional would consider reasonable to ensure his safety and to
facilitate his ability to function free from bodily restraints. It may well be
unreasonable not to provide training when training could significantly reduce the
need for restraints or the likelihood of violence.245
Although every Justice joined the opinion of the Court, a sharp division surfaced in two
concurring opinions over the affirmative duty-to-provide-treatment question. Plaintiff argued that
his right to “minimally adequate” habilitation embraced the right to such “treatment as [would]
afford [him] a reasonable opportunity to acquire and maintain those life skills necessary to cope
as effectively as [his] capacities permit.”246 Plaintiff found support for this asserted federal
constitutional right in Pennsylvania’s statutory right to “care and treatment.”247 In Chief Justice

243

Youngberg, 457 U.S. at 321. In Youngberg, the Third Circuit, sitting en banc, had endorsed a
liberty-based right to treatment—a holding not repudiated by the opinion of the Court and endorsed by
three Justices in a concurrence. Romeo v. Youngberg, 644 F.2d 147, 168 (3d Cir. 1980), vacated on other
grounds, 457 U.S. 307 (1982) (“By basing Romeo's deprivation of liberty at least partially upon a promise
of treatment, the state ineluctably has committed the community's resources to providing minimal
treatment.”). Unlike in other cases, there was no challenge to the propriety of the commitment itself. As
such, the asserted liberty interest pertained only to conditions within the institution. See also O'Connor v.
Donaldson, 422 U.S. 563, 575 (1975) (holding that involuntary confinement of a mentally ill person is
unconstitutional if they can live in freedom without causing harm).
244

245

Id. at 327.
Id. at 323.

246

Id. at 330 and n.* (Burger, C.J., concurring). The opinion of the Court did not address this
argument.
247

Id.

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Burger’s view, this affirmative duty theory was “frivolous” because it amounted to an argument
that “every substantive right created by state law [is] enforceable under the Due Process Clause,”
which result in “the distinction between state and federal law [] quickly be[ing] obliterated.”248
Writing for three Justices, however, Justice Blackmun disagreed.249 Citing Jackson v. Indiana’s
“reasonable relation” requirement, Justice Blackmun’s concurrence opined that it would raise a
“serious issue” if the state confined someone for “care and treatment”—and then failed to
provide the person with treatment.250 When the state justified commitment “upon a promise of
treatment,” “due process might well bind the State” to provide at least some treatment” to satisfy
due process.251 The Court has not since revisited the question over which the concurrences
diverged.
The Sixth Circuit’s now-vacated decision in Gary B. went far in recognizing the viability
of a liberty-based claim to public schooling. The case was an equal protection and due process
challenge brought by plaintiffs at Detroit’s five “lowest performing” schools.252 Plaintiffs alleged

248

Id.

249

Justice Blackmun’s concurrence, joined by Justices O’Connor and Brennan, agreed with the
Court’s decision not to address the “failure to provide treatment” theory because of “uncertainty in the
record” regarding whether plaintiff was denied treatment and whether the entitlement to treatment was
properly raised below. Id. at 326 (Blackmun, J., concurring).
250

Id. at 325 (emphasis in original).

251

Id. at 326.

252

Gary B. v. Whitmer, 957 F.3d 616, 624 (6th Cir. 2020).

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shockingly bad conditions with respect to teaching,253 facilities,254 and materials.255 Echoing
Youngberg and Jackson, plaintiffs made (what they described as) a “negative rights” argument
under the Due Process Clause: namely, that because the compulsory attendance law “restricted”
plaintiffs’ “freedom of movement and freedom from state custody,” defendants’ subsequent
failure to “provide[] . . . an adequate education . . . render[ed] the detention arbitrary,” thereby
violating plaintiffs’ due process rights.256 Also under the heading of due process, plaintiffs
argued they enjoyed a “fundamental right to a basic education, meaning one that provides access
to literacy.”257 As to equal protection, they argued that defendants “discriminated against
Plaintiffs by failing to provide the same access to literacy they give to other Michigan
students.”258
Beginning with the “negative rights” argument, the majority opinion for the Sixth Circuit
recognized that “[c]ompulsory school attendance laws are a restraint on Plaintiffs’ freedom of
movement, and thus implicate the core protections of the Due Process Clause.”259 The court noted

253

Id. at 624–25 (listing, inter alia, 200 vacancies in teaching staff, rampant short-term absences
leading to widespread instruction by uncertified and unlicensed teachers, lack of appropriate curricular
materials or support).
254

Id. at 625–26 (describing “decrepit or even unsafe physical conditions,” including, inter alia,
uniform lack of compliance with health and safety codes; excessive heat causes rashes, vomiting, and
fainting; excessive cold necessitating outdoor winter gear to be worn at all times; vermin infestations;
black mold; undrinkable water; over-crowding such that students lack seating; leaks and falling plaster in
classrooms).
255

Id. at 626–27 (describing, inter alia, lack of “books and materials needed to plausibly provide
literacy,” inaccessible libraries, lack of basic supplies).
256

Id. at 638.

257

Id. at 642.

258

Id. at 633.

259

Id. at 640.

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that “the important governmental interest” in public education meant the state “has the power to
compel attendance at school” as a general matter.260 However, the court found that this power is
not unconditional. Although “some level of education [] justifies whatever deprivation of liberty
is caused by mandatory attendance,” the court nonetheless held that the state could not, consistent
with due process, “forc[e] students to attend a ‘school’ in which they are simply warehoused and
provided no education at all[.]”261 Although the court upheld dismissal of this claim based on the
deficiency of plaintiff’s pleading on this point,262 it suggested that the applicable test was whether
the deprivation of liberty bore a “reasonable relationship to the state’s asserted purpose.”263
Notably—and, in our view, correctly—the majority opinion in Gary B. rebuffed the
dissent’s argument that, under Deshaney and its progeny, Youngberg’s reasoning did not apply in
the public school context.264 DeShaney arose from a child’s suit against the state after child
protective services returned the child to live with his abusive father—despite the state’s
knowledge of the violence the child faced at home—after which the father inflicted extreme and
debilitating injuries on the child.265 In DeShaney, the Court found the Youngberg analysis
inapplicable because the child was not in the state’s custody at the time of the injury, and

260

Id.

261

Id.

262

The court found plaintiff’s “factual allegations are insufficient to assess the viability of this claim.”
Id. Specifically, the court faulted the absence of allegations regarding “the duration or nature of the
restraint faced in their schools, such as the hours per day of compulsory attendance, the number of days
per year, or the restrictions on Plaintiffs’ liberty throughout the typical school day.” Id. at 642.
263

Id. at 641 (citing Foucha v. Louisiana, 504 U.S. 71, 79 (1992) (applying the Jackson reasonable
relation standard)).
264
Id. at 678 (Murphy, J., dissenting) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489
U.S. 189 (1989)).
265

DeShaney, 489 U.S. at 191–94.

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because the father was “in no sense a state actor.”266 The Court noted that in limited
circumstances, a “special relationship” may arise that generates affirmative duties to protect, but
it found that the combination of knowledge of danger from private parties and the past steps
taken to protect the child did not qualify.267
The dissent in Gary B. inaccurately characterized Youngberg as an “exception” to the
DeShaney framework, rather than recognizing that it addressed a different issue. Judge Murphy’s
dissent reasoned that courts have “consistently rejected the argument that Youngberg’s custody
exception [to the rule that a state has no duty to provide services] covers children based on
compulsory attendance laws.”268 But the cases the dissent cited in support of this proposition all
concern a distinct issue: whether a public school had a duty to protect a student from harm at the
hands of a private actor, which required finding a “special relationship” between the state and
the student.269 The fact that courts have generally rejected such claims—finding that there is no
special relationship between a public school and a student within the meaning of DeShaney270—

266

Id. at 201.

267

Id. at 197–98.

268

Gary B., 957 F.3d at 678, citing Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834, 854 (6th Cir.
2016); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995); and Doe v. Claiborne County,
103 F.3d 495, 510 (6th Cir. 1996).
270

Some Circuit Courts of Appeal have categorically dismissed such claims, apparently based on a
misreading of Deshaney, by reasoning that Deshaney required total physical custody over a person to
trigger affirmative duties. See, e.g., D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d
1364, 1372 (3d Cir. 1992) (en banc) (“[T]he school defendants' authority over D.R. during the school day
cannot be said to create the type of physical custody necessary to bring it within the special relationship
noted in DeShaney[.]”). Others have made case-by-case determinations of whether a special relationship
exists but have nonetheless uniformly reached the same result. Doe v. Hillsboro Indep. Sch. Dist., 113
F.3d 1412, 1415 (5th Cir. 1997) (“We decline to hold that compulsory attendance laws alone create a
special relationship giving rise to a constitutionally rooted duty of school officials to protect students from
private actors.”); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995) (“[T]here was no
special relationship between decedent and the school district that gave rise to a constitutional duty on the
part of the Board to protect her from the consequences of a seizure while she was on the school bus[.]”);

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says nothing about the liberty theory recognized in Gary B. (or that we advance in this
section).271 Regardless of whether the custodial control is as “strict” as that in Youngberg,272 it is
undisputed that there is some deprivation of liberty when children are compelled to attend public
school.273 To withstand constitutional scrutiny, that justification cannot exist only in theory.274
As to the “fundamental right” aspect of plaintiffs’ due process claim, the Court held that
access to “a basic minimum education—one that can plausibly impart literacy—. . . is a
fundamental right protected by the Due Process Clause.”275 After detailing the history of education
in the states and federal litigation regarding the quality and equality of its provision,276 the Court
concluded that “literacy is foundational to our political process and society.”277 Emphasizing

see also Graham v. Independent Sch. Dist. No. I–89, 22 F.3d 991 (10th Cir. 1994); Dorothy J. v. Little
Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993); J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d
267, 272–73 (7th Cir. 1990). Courts have evinced more openness to affirmative duties under Deshaney in
the boarding-school context. See, e.g., Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir. 1994) (finding a
“special relationship” between residential student at boarding school for the deaf), rev’d in reh’g en banc
by Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995) (“A ‘special relationship’ arises between a person
and the state only when this person is involuntarily confined against his will through the affirmative
exercise of state power.”).
271

Indeed, none of the cases cited by the dissent discuss Youngberg.

272

Gary B., 957 F.3d at 678 (Murphy, J., dissenting) (“[Youngberg] exception generally applies only
for those individuals under strict state control.”).
273

Id. at 640 (“If the state required a group of people to sit in a building for several hours a day
without any justification, such a restraint would clearly offend their right to liberty.”).
274

The majority also concluded that even if DeShaney’s framework applied, the allegations satisfied
the “state-created danger” doctrine. Id. at 658–59 (“While the dissent argues against the right to a basic
minimum education by comparing it to a constitutional right to food, a better analogy is a world in which
the state took charge of the provision of food to the public . . . [and] then left the shelves on all the stores
in one city bare, with no compelling governmental reason . . ., plac[ing] the residents of that city in
heightened danger”).
275

Id. at 655.

276

Id. at 650 (citing Barry Friedman & Sara Solow, The Federal Right to an Adequate Education, 81
GEO. WASH. L. REV. 92, 127–32 (2013)).
277

Id. at 652.

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functional considerations, the Court explained:
Effectively every interaction between a citizen and her government depends on literacy.
Voting, taxes, the legal system, jury duty—all of these are predicated on the ability to read
and comprehend written thoughts. . . .
Even things like road signs and other posted rules, backed by the force of law, are
inaccessible without a basic level of literacy. . . .
Access to literacy also draws meaning from related rights, further indicating that it must be
protected.278
In so reasoning, the court found that “access to literacy is itself fundamental because it is
essential to the enjoyment of [] other fundamental rights,” drawing on both the equal protection
and due process precedents.279 The court concluded that plaintiffs’ allegations, if proven,
“demonstrate . . . depriv[ation] of an education providing access to literacy.”280
Three weeks after the decision in Gary B., and after four years of litigation, the parties
reached a settlement.281 The terms of that settlement include a commitment by the Governor, in
the Governor’s “sole discretion,” to “diligently proposed and support legislation” that will
provide the Detroit public schools with a least $94.4 million for literacy-related programs;
expressing agreement that the Detroit public schools will not be disqualified “from prequalifying
and qualifying” for capital expenditure bonds; and the establishment of a Literacy Task Force
and Educational Policy Committee with student, parent, teacher, and literacy expert-membership.

278

Id. at 653.

279

Id.

280

Id. at 661.

281

TERMS FOR SETTLEMENT AGREEMENT AND RELEASE BETWEEN ALL PLAINTIFFS AND THE
GOVERNOR OF THE STATE OF MICHIGAN IN GARY B., ET AL. V. WHITMER, ET AL. SETTLEMENT TERM
SHEET (May 13, 2020), available at http://www.publiccounsel.org/tools/assets/files/1382.pdf.

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And, on the heels of that settlement, the Sixth Circuit sua sponte vacated the panel’s decision.

C. The Anti-Caste Principle and the Scope of the State’s Duty
The vacated decision in Gary B., because it was decided on appeal from the
district court’s dismissal, did not have to grapple with remedial questions, and thus the
court never had a chance to consider how to remedy the state’s violation of the libertybased education rights of Black, Brown, and poor children. In this section, we turn to
some of the principles that must inform a court-ordered remedy when the state has
violated the liberty-based right to quality public schooling we propose.
In our view, the nature of the remedy flows ineluctably from the nature of the
harm. The confinement of the children in carceral schools subjects them to unsafe
physical environments, criminal sanction as a mode of punitive discipline, and substandard education that blocks personal growth, social and economic advancement, and
political participation. Moreover, the harms that flow from the violation of the children’s
liberty and equality go beyond the terms of their immediate confinement. Rather, by
design and effect, carceral schools mark Black, Brown, and poor children as members of
excluded classes whose life possibilities are narrowed and truncated. In short, public
schools that violate the children’s liberty right perpetuate and entrench caste. In the face
of such a violation, at a minimum the remedy must release the children from the
conditions of their confinement consistent with the mandatory nature and guaranteed
provision of public schooling. In the context of compulsory education laws, the children’s
release must be to schools that ensure their equal liberty, and not to educational settings

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that consign them to a lifetime of subordination. For the court to do less is to embrace the
very caste system the Fourteenth Amendment bars.
Framing the liberty argument within the theory of abolition constitutionalism restores the
anti-caste principle to its central role in the Reconstruction Amendments,282 and as such, an anticaste orientation informs the yet-to-be recognized federal right to education. The interdiction
against racial (and class) caste is clear from the Congressional discussion of the amendment.
Certainly, before the Civil War abolitionists understood slavery as a form of caste.283 At a
minimum, as Senator William J. Purman argued in defense of the Fourteenth Amendment, the
anti-caste principle holds that “[c]olor is no crime, and the sacrilegious hands that would make it

282

See Horton, supra note 284, at ch. 1 passim (describing the anti-caste constitutionalism as it took
root before and after adoption of the Fourteenth Amendment). Prior to the Civil War, abolitionists
characterized slavery as a form of caste. See, e.g., Steven G. Calabresi, On Liberty, Equality, and the
Constitution: A Review of Richard A. Epstein’s The Classical Liberal Constitution, 8 N.Y.U. J. OF LAW
& LIBERTY 839, 894 (2014), quoting Representative Norton Townshend, a Democrat from Ohio:
I protest against all these interpolations into the Democratic creed, and against any interpretation
of Democracy as makes it the ally of slavery and oppression. Democracy and slavery are directly
antagonistic. Democracy is opposed to caste, slavery creates it; Democracy is opposed to special
interest groups; slavery is but the privilege specially enjoyed by one class--to use another as brute
beasts and take their labor without wages; Democracy is for elevating the laboring masses to the
dignity of perfect manhood; slavery grinds the laborer into the very dust. . . .” [S]lavery is but the
extreme of class legislation . . . . [S]lavery is nothing more than the privilege some have of living
out of others.
(citing Cong. Globe, 32d Cong., 1st Sess. 713 (1852)).
283

See Paul R. Dimond, The Anti-Caste Principle—Toward a Constitutional Standard for Review of
Race Cases, 30 WAYNE L. REV. 1, 12 (1983) (documenting that “both the statements of the author of the
equal protection clause and the congressional debates leading to its submission to the states support an
anti-caste interpretation”); see also Clark D. Cunningham and N.R. Madhava Menon, Race, Class, Caste .
. .? Rethinking Affirmative Action, 97 MICH. L. REV. 1296, 1297 (1999) (stating that “[t]he use of ‘caste’
in Fourteenth Amendment jurisprudence has, of course, a long tradition, with origins in the
Reconstruction Congressional debates on the amendment”); Scott Grinsel, “The Prejudice of Caste”: The
Misreading of Justice Harland and the Ascendancy of Anticlassification, 15 MICH. J. RACE & L. 317
(2010) (discussing caste in the amendment’s debates as a metaphor for anti-subordination, and not of
colorblindness).

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so . . . must be stayed[.]”284 Senator Charles Sumner, one of the leading proponents of the
Reconstruction Amendments, repeatedly referred to the abolition of caste as their core
mission.285 Indeed, he highlighted the public school as “the place to commence to break down
caste.”286
The anti-caste principle goes beyond conventional equality doctrine, with its formalist
emphasis on colorblindness. Rather, it aims to transform, as Cass R. Sunstein has explained, “a
social status quo that, through historical and current practices, creates a second-class status.”287
Carceral schools build on a system that, to borrow from Kenneth Karst, in “both its purposes and
its effects went well beyond the sum of its parts” in perpetuating and replicating the outcast

284

Congressional Record, vol. 2, pt. 1 (1874), 425, quoted in CAROL A. HORTON, RACE AND THE
MAKING OF AMERICAN LIBERALISM 24 (2005).
285

See Charles Sumner, The Question of Caste, in XVII Charles Sumner: His Complete Works 13183 (Negro Universities Press 1969). See also Adamson v. California, 332 U.S. 46, 52 n.8 (1947) (quoting
Sen. Sumner that the Fourteenth Amendment abolished “oligarchy, aristocracy, caste or monopoly with
peculiar privileges and powers”); AMERICA'S UNFINISHED REVOLUTION, supra note 99, at 232 (citing
Charles Sumner’s statement, “The demon of caste must be destroyed”).
286

Hearings on Amnesty Bill (Civil Rights Amendment), 42nd Cong. 383 (Jan. 15, 1872) (statement
of Sen. Sumner, quoting letter received from Black man urging equality legislation), quoted in Bryan K.
Fair, The Anatomy of American Caste, 18 ST. LOUIS U. PUB. L. REV. 381, 391 (1999). Sumner further
stated, in defense of integrated common school:
The common school is important to all; but to the colored child it is a necessity. Excluded from the
common school, he finds himself too frequently without any substitute. Often there is no school.
But even where a separate school is planted it is inferior in character. No matter what the temporary
disposition, the separate school will not flourish as the common school. . . . White parents will take
care not only that the common school is not neglected, but that its teachers and means of instruction
are the best possible, and the colored child will have the benefit of this watchfulness. This decisive
consideration completes the irresistible argument for the common school as the equal parent of all
without distinction of color.
Hearings on Amnesty Bill to Remove Political Disabilities Imposed on Former Confederates by 14th
Amendment (Civil Rights Amendment, 42nd Cong. 384 (Jan. 15, 1872) (statement of Sen. Sumner),
quoted in Fair, id.
287

Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2436 (1994).

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status of Black, Brown, and poor children.288 The ban on caste treats as illicit the laws and
structures that reinforce the children’s arbitrary subordination, and focuses on systemic injustice,
not on the single invidious law or isolated discriminatory action.289 As Isabel Wilkerson has put
it, the anti-caste principle seeks to purge “the afterlife of pathogens” that continues to plague
American society, even after they have been banished formally as a matter of law.290
In Plyler v. Doe, the Court affirmed the anti-caste principle as an aspect of equality
doctrine, holding that the state of Texas violated this ban when it withheld public schooling from
children on terms available to the rest of the community because of the immigrant status of the
student’s parents. The challenged law on its face did not bar immigrant children from the public
schools; rather, it permitted localities to refuse to enroll the children or to enroll them but to
charge tuition, and penalized districts that did accept such children by withholding state funding.
The anti-caste principle rendered the law unconstitutional, notwithstanding the refusal of the
Plyler Court to recognize education to be a fundamental right, or to treat immigrant children as
members of a suspect class (so that the challenged law would have received strict scrutiny from
the Court). Rather, the Court held the Fourteenth Amendment made it impermissible for the

288

Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245, 274 (1983). See also Paul R.
Dimond and Gene Sperling, Of Cultural Determinism and the Limits of Law, 83 MICH. L. REV. 1065,
1069 (stating that the caste approach reveals that “individual transactions” take place “in the context of
larger markets and social spheres that have been shaped by a variety of factors that are subject to some
influence, for good or ill, by public action and concerted private effort. Although causal connections are
neither simple nor capable of precise delineation, there remains real concern that institutional bias and
systemic discrimination have left enduring barriers that continue to obstruct the opportunities of members
of historically victimized groups.”).
289

See Daniel Kiel, No Caste Here? Toward a Structural Critique of American Education, 119 ST. L.
REV. 611, 612 (2015) (explaining that “[a] caste system uses a network of laws, policies, customs, and
institutions collectively operating to ensure that certain groups remain in a predetermined status within
society”).
290

ISABEL WILKERSON, CASTE: THE ORIGINS OF OUR DISCONTENTS 3 (2020) (referring to the
“afterlife of pathogens” as an aspect of caste).

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state, by impeding the students’ access to public schooling, to “impose a lifetime hardship on a
discrete class of children not accountable for their disabling status,” and, by effect, to mark the
children with a stigma that marred their ability to “live within the structure of our civil
institutions.”291 Later, in a case challenging a school bus fee that impeded an indigent child’s
access to public school, the Court acknowledged the force of the anti-caste principle, but found
that the bus fee did not threaten “to promote the creation and perpetuation of a sub-class of
illiterates” and so the principle was not violated.292 Plyler, however, remains potent support for
the anti-caste principle. As Justin Driver has emphasized, “[p]roperly understood,” the Plyer
decision “rests among the most egalitarian, momentous, and efficacious constitutional opinions
that the Supreme Court has issued throughout its entire history.”293
The anti-caste principle as applied to educational inequality draws unlikely support from
Justice Thomas’s concurring opinion in Zelman v. Simmon-Harris, involving a voucher program
that allowed for inner-city children to transfer from low-performing schools to any school,
including parochial schools. Justice Thomas wrote:294
Frederick Douglass once said that “[e]ducation . . . means emancipation. It
means light and liberty. It means the uplifting of the soul of man into the
glorious light of truth, the light by which men can only be made free.” Today
many of our inner-city public schools deny emancipation to urban minority
students. Despite this Court’s observation nearly 50 years ago in Brown v.
291

Plyler v. Doe, 457 U.S. 202, 223 (1982).

292

Kdrmas v. Dickinson Public Schools, 487 U.S. 450 (1988). One of the authors was amicus curiae
in this lawsuit before the Supreme Court. See The Supreme Court, 1987 Term, Leading Cases, Access to
Public Education, 102 Harv. L. Rev. 201, 208 (1987) (“Justice O’Connor essentially re-wrote Plyler,
however, by focusing on Justice Powell’s concurrence and the dissent in which she joined, rather than on
the reasoning of the majority.”).
293

JUSTIN DRIVER, THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE
BATTLE FOR THE AMERICAN MIND 316 (2018).
294

536 U.S. 639, 682–83 (2002).

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Board of Education . . . that “it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education,”
urban children have been forced into a system that continually fails them.295
He continued:
The failure to provide education to poor urban children perpetuates a vicious
cycle of poverty, dependence, criminality, and alienation that continues for the
remainder of their lives. If society cannot end racial discrimination, at least it
can arm minorities with the education to defend themselves from some of
discrimination’s effects.296
Justice Thomas supported this common sense understanding of the relation between educational
equality and life possibilities with data,297 discussing empirical studies that confirm the generally
strong relationship between education and “socioeconomic attainment.”298
To these studies one can cite numerous others that confirm the importance of higher
education for increasing life outcomes,299 especially for those from disadvantaged
295

Id. at 676.

296

Id. at 682–83.

297

See id. at 683 (stating that “a black high school dropout earns just over $13,500, but with a high
school degree the average income is almost $21,000”).
298

David B. Bills, Credentials, Signals, and Screens: Explaining the Relationship between Schooling
and Job Assignment, 73 REV. EDUC. RES. 441, 441 (2003). See David Card, Estimating the Return to
Schooling: Progress on Some Persistent Econometric Problems 69 ECONOMETRICA 1127 (2001)
(reviewing a large body of academic research suggesting there is a strong causal relationship between
increases in education and increases in earnings).
299

See Eric Grodsky & Julie Posselt, Higher Education and the Labor Market, in EDUCATION AND
SOCIETY: AN INTRODUCTION TO KEY ISSUES IN THE SOCIOLOGY OF EDUCATION (Thurston Domina et al.,
eds., 2019) (“In addition to economic benefits, those who complete college experience a range of
noneconomic benefits. Educational attainment is a critical social determinant of health, for example.
Education in general, and college in particular, also contributes to the “diverging destinies” of American
families, with patterns of marriage, marital timing and longevity, and fertility closely bound to college
attendance and completion. College graduates are markedly less likely to be convicted of a crime or
experience incarceration and are more likely to vote and show other evidence of civic engagement.”)
(citations omitted); Nathan Grawe, Education and Economic Mobility, URBAN INSTITUTE (2008),
available at https://www.urban.org/sites/default/files/publication/31161/1001157-education-andeconomic-mobility.pdf (“In the last 50 years, the college-high school wage premium has nearly doubled
from around 30 percent to just over 60 percent, reaching levels not seen since the turn of the twentieth

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backgrounds.300 Recognizing the importance of higher education only further underscores the
need to invest in K-12 education: completion of, and success in, high school often determines
access to higher education.301 For this reason alone, K-12 education is critical for increasing life
outcomes of children in the United States. Moreover, studies show that quality primary and
secondary education has the ability to increase mobility prospects for children by their own
accord.302 As the Fifth Circuit has stated, “every child deserves a shot at the American Dream—

century. Not only do college graduates earn much more than high school graduates, but much of the
returns appear to be caused by the college experience. There is little doubt that post-secondary schooling
aids absolute mobility.”) (citations omitted); Omari Scott Simmons, Class Dismissed: Rethinking SocioEconomic Status and Higher Education Attainment, 46 ARIZ. ST. L.J. 231, 260 (2014) (explaining how
higher education not only contributes to individuals’ increased income but also contributes to “better
personal, spousal and child health outcomes; children’s educational gains; greater longevity, and even
happiness.”).
300

Michael Greenstone et al., Thirteen Economic Facts about Social Mobility and the Role of
Education, HAMILTON PROJECT (June 2013), available at https://www.brookings.edu/wpcontent/uploads/2016/06/THP_13EconFacts_FINAL.pdf (explaining that data shows “a college degree
can be a ticket out of poverty” since “a low-income individual without a college degree will very likely
remain in the lower part of the earnings distribution, whereas a low-income individual with a college
degree could just as easily land in any income quintile—including the highest.”); Michael J. Petrilli,
Education is Still a Sturdy Path to Upward Mobility, FLYPAPER (Oct. 13, 2017), available at
https://fordhaminstitute.org/national/commentary/education-still-sturdy-path-upward-mobility# (“[T]he
overwhelming research consensus still stands: Students who attain valuable postsecondary credential have
a much better chance of making it into the middle class and beyond.”).
301

Arguably, this extends to pre-kindgergarten schooling as well, given that studies show children
need access to quality pre-kindergarten programs to be learning ready when they enter kindergarten. See,
e.g., Beth Meloy, Madelyn Gardner, and Linda Darling-Hammond, Untangling the Evidence on
Preschool Effectiveness: Insights for Policymakers, LEARNING POLICY INSTITUTE (Jan. 2019),
(discussing impact of preschool programs), available at
https://learningpolicyinstitute.org/sites/default/files/productfiles/Untangling_Evidence_Preschool_Effectiveness_REPORT.pdf; see James E. Ryan, A Constitutional
Right to Preschool, 94 CALIF. L. REV. 49, 50 (2006) (discussing reports that show that “the first few
years of life are crucial for cognitive development and that early experiences can influence the emerging
architecture of the brain”).
302

See Grawe, supra n. 2 at 1 (“A sizeable majority of studies suggest school quality improvements
[at the K-12 level] raise earnings supporting absolute mobility. Moreover, many studies find the effects
are greatest among children in low-income families, suggesting greater relative mobility as well (though
on this point there is disagreement).”); Anjaleck Flowers, The Implied Promise of a Guaranteed
Education in the United States and How a Failure to Deliver it Equitably Perpetuates Generational
Poverty, 45 MITCHELL HAMLINE L. REV. 1, 83 (2019) (“One of the strongest tools for breaking

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and the key to social mobility is a good education.”303 Provision of quality K-12 education, then,
is a political imperative that needs immediate effectuation to secure the goals of the
Reconstruction Amendments.304

IV.

From Right to Remedy: An Abolitionist Approach to Public Schooling
In this Part we move from the justification for a federal right to education to defending

and giving content to its realization. At the outset, we acknowledge the standard objections that
federal courts lack institutional competence and democratic legitimacy to address constitutional
claims involving “positive” rights such as that to public schooling. We argue that the anti-caste
principle provides courts with a manageable standard for implementing a right to quality public
schooling, and that such a standard bolsters democratic legitimacy by supporting, rather than
suppressing, efforts at social mobilization by politically marginalized people. . We further argue
that judicial reliance upon the anti-caste principle as a foundation for a federal education right
comports with federalism, for it potentially can draw from state court decisions that already have
defined a state constitutional education right in terms of human flourishing.

generational poverty and having a life of financial success is a quality education.”) (citing Brian A. Jacob
and Jens Ludwig, Improving Educational Outcomes for Poor Children, 26 FOCUS 56 (2009), available at
https://www.irp.wisc.edu/publications/focus/pdfs/foc262j.pdf). However, schooling today has had only a
“modest contribution to variation in intergenerational income transmission.” See Jesse Rothstein,
Inequality of Educational Opportunity? Schools as Mediators of the Intergenerational Transmission of
Income, 37 J. LAB. ECON. S. 85, S122 (2019) (“Taken together, these factors indicate that the education
system makes only a modest contribution to variation in intergenerational income transmission.”).
303

Smith v. Sch. Bd. of Concordia Par., 906 F.3d 327, 339 (5th Cir. 2018) (Ho, J., concurring).

304

Joy James, Introduction, Democracy and Captivity, in THE NEW ABOLITIONISTS: (NEO)SLAVE
NARRATIVES AND CONTEMPORARY PRISON WRITINGS, at xxii (Joy James ed., 2005) (“Emancipation is
given by the dominant . . . . Freedom is taken and created.”) (emphasis in original); see also BLACK
RECONSTRUCTION, supra note 101, at 201 (describing steps needed to “implement[] emancipation mak[e]
Negro freedom real.”).

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A. Education Reform, Judicial Competence, and Democratic Legitimacy
Arguments against recognizing a federal education right often focus on the federal
judiciary’s presumed institutional incompetence and lack of democratic legitimacy when
disputes involve rights that have a “positive” component requiring the government to provide
goods or services.305 Both the institutional incompetence and illegitimacy arguments sound in
separation of powers and federalism.306 We briefly survey this rich literature.
According to the standard account of the institutional objection, political branches (state
and federal) have a comparative advantage in devising policy. They can better assess societal
problems through institutional tools, such as investigations and committees, that allow for
gathering facts and expertise.307 Moreover, legislation is said to avoid a “one size fits all”
approach because it can fine-tune solutions with greater granularity.308 By contrast, the
judiciary’s lack of competence is said to flow from the institutional structure of courts and
litigation, which are subject to procedural rules (such as those of evidence and party structure)309

305

See Scott R. Bauries, Foreword: Rights, Remedies, and Rose, 98 KY. L.J. 703, 708 (2009–2010)
(explaining that “a positive right theoretically allows its order to compel government action”).
306

See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality
Review, 112 HARV. L. REV. 1131, 1157–69 (1999) (discussing these objections to federal court
recognition and enforcement of positive rights).
307

See F. Andrew Hessick, Rethinking the Presumption of Constitutionality, 85 Notre Dame L. Rev.
1447, 1472 (2010) (discussing presumption of legislative superiority in the field of policy making and
rules of judicial deference and restraint that have developed in response).
308

See Jeremy Waldron, The Dignity of Legislation, 54 MD. L. REV. 633, 663 (1995) (stating that
“one of the values most commonly associated in the modern world with legislation is democratic
legitimacy”).
309

See Allegra M. McLeod, Envisioning Abolition Democracy, 132 HARV. L. REV. 1613, 1627 (2019)
(observing that “litigation is limited by legal rules that are not necessarily designed to promote justice,”
including rules “exclud[ing] certain kinds of evidence,” as well as more generally, the limits inherent in
“resources and incentives of lawyers”).

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that purportedly impede the judiciary’s ability to resolve disputes that have a polycentric
structure (such as public schooling).310 Moreover, because litigation depends on the professional
expertise of lawyers, courts are said to be ill-suited to eliciting the voices of outsiders who lack
“adjudicative equipage.”311 Finally, permitting courts to constitutionalize complex social and
economic problems is said to distort democracy, undermine public deliberation, and deflate
autonomous decision making, generating backlash in the process that is politically selfdefeating.312 As to legitimacy, the unelected judges that populate Article III courts are said to
lack the democratic bona fides of directly elected officials who can be disciplined at the ballot
box.313 In addition, critics argue that court-centric approaches are counter-productive because
constitutionalism tends to deflate political aspirations and sap energy from social movements,314
and because courts cannot deliver the goods that they declare to be constitutionally required.315
310

See generally Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).

311

William Rubenstein, The Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865
(2002).
312

See Frank I. Michelman, Democracy-Based Resistance to a Constitutional Right of Social
Citizenship, 69 FORDHAM L. REV. 1893 (2001) (discussing backlash to judicial recognition of social
citizenship rights).
313

See Carol Nackenoff, Is There a Political Tilt to “Juristocracy”?, 65 MD. L. REV. 139 (2006)
(discussing conservative and liberal criticisms of unelected judiciaries). See generally ALEXANDER
BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16, 18 (1962)
(discussing federal judicial review as “counter-majoritarian” and “deviant” in a democracy).
314

See, e.g., Deborah Dinner, The Universal Childcare Debate: Rights Mobilization, Social Policy,
and the Dynamics of Feminist Activism, 1966–1974, 28 LAW & HIST. REV. 577, 579 (2010) (stating that
critics of judicially cognizable rights “have called attention to the empty formality, false neutrality, and
constrained scope of rights defined through litigation,” and the fact that “ attorneys' professional interests
and class-based political agendas, as well as the rules of doctrinal argumentation, constrain rights claims
made by lawyers arguing in the courts”); Scott L. Cummings, The Social Movement Turn in Law, 43 LAW
& SOC. INQUIRY 360 (2018).
315

See Frank B. Cross, The Error of Positive Rights, 48 UCLA L. REV. 857, 893 (2001) (An
empirical examination demonstrates that courts have not been very active in enforcing state constitutional
positive rights and that the poor appear to be no better off in the presence of such rights”).

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Our response to these concerns is that of confession and avoidance: we concede a
measure of incompetence and illegitimacy, and move on. No doubt courts have limited
competence, but, as many have argued, the comparative advantage of the elected branches would
seem—especially during these days of legislative and executive dysfunction—to rest on a
Nirvana fallacy.316 And comparative statements about democratic legitimacy often depend on
formulaic platitudes, which omit any mention of race and class, rather than meaningful
functional analysis. In the face of pressing concerns about democratic gaps and in Congress and
state legislatures,317 and about suppression and exclusion that enables electoral minorities to
block the policy preferences of a majority of Americans,318 it is hardly decisive to point to the
lack of electoral pedigree of the Article III courts. As for positive rights claims having a unique
decision making structure tending toward non-justiciability, the concern seems overstated and

316

See Harold Demsetz, Information and Efficiency: Another Viewpoint, 12 J.L. & ECON. 1 (1969)
(explaining the fallacy as a “choice as between an ideal norm and an existing ‘imperfect’ institutional
arrangement”). On the other hand, we recognize that heroic assumptions about judges, placing emphasis
on their reliance on principle, rationality, and fairness, can verge on hyperbole. See Cass R. Sunstein and
Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 886 (observing that “theorists
frequently work with an idealized, even heroic picture of judicial capacities and, as a corollary, a
jaundiced view of the capacities of other lawmakers and interpreters”).
317

As the Sixth Circuit explained in the now-vacated Gary B. decision,
[I]t is unsurprising that our political process, one in which participation is effectively predicated
on literacy, would fail to address a lack of access to education that is endemic to a discrete
population. The affected group—students and families of students without access to literacy—is
especially vulnerable and faces a built-in disadvantage at seeking political recourse.

318

See, e.g., Fatema Ghasletwala, Examining the School-to-Prison Pipeline: Sending Students to
Prison Instead of School, 32 J. CIV. RTS. & ECON. DEV. 19 (2018) (positing that “it would be illogical to
expect a sensible, systemic remedy from the judiciary or legislators” for the school-to-prison pipeline that
has developed in the wake of “lack of resources, race and socioeconomic status, and zero-tolerance
policies, injunction with legislation and once-legal but now persisting structural discrimination”).

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would, if taken seriously, require—as one commentator has stated—“locking up the courts” in
almost all disputes “and flinging the keys into the sea.”319
Above all, however, claims about competence and legitimacy ignore a consideration that
abolition constitutionalism brings to the foreground: the historic and continuing role of race and
class in the composition and function of the institutions of government.320 In the realm of
education, the argument that opposes recognition of a federal education right is indifferent to the
ways in which federal and state laws—statutes as well as judicial opinions—have combined to
confine Black, Brown, and poor children in inferior public schools that are instruments of a
carceral state. Rather than retreat from courts and law, however, we see them as a tool for
challenging students’ confinement—a tool that can be used most effectively when an asserted
legal right comports with a vision of substantive justice that meaningfully challenges students’
confinement and the nature of the right aligns with movement demands.321 By approaching law
instrumentally, the aspiration is to reorient judicial decision-making in a more humane direction.
To borrow from Dorothy E. Roberts, lawyers can “help[] to articulate and present the demands
of people subject to carceral punishment . . . —even when they anticipate failure.”322

319

Shivprasad Swaminathan, What the Centipede Knows: Polycentricity and “Theory” for Common
Lawyers, 40 OXFORD J. LEG. STUDS. 265 (2020) (quoting Jeff King, Judging Social Rights 189 (2012)).
320

See Juan F. Perea, Echoes of Slaver II: How Slavery’s Legacy Distorts Democracy, 51 U.C. DAVIS
L. REV. 1081, 1087 (2018) (discussing slavery protection and the Electoral College); Sanford Levinson,
Still Complacent After All These Years: Some Rumination on the Continuing Need for a “New Political
Science”, 89 B.U. L. REV. 409, 418 (2009) (“The Senate, along with slavery, was one of the two “great
compromises” that enabled the proposal and ratification of the Constitution. No one would think of
praising the values undergirding chattel slavery today; one wonders exactly why the Senate is any
different.”).
321

See infra notes 412–432 and accompanying text.

322

See Roberts, supra note 8, at 113 & n.706 (discussing the role of the National Conference of Black
Lawyers in the racial justice movements of the 1960s and 1970s).

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B. The Anti-Caste Principle as a Manageable Standard
Consistent with the argument about institutional incompetence, a frequent objection to
the recognition of a federal right to education is the purported lack of manageable standards to
guide the court in its decisionmaking. Thus, Derek W. Black observes that the lack of judicially
managed standards was the “death knell”323 of an equality-based right to public schooling in San
Antonio Independent School Board v. Rodriguez.324 Abolition constitutionalism meets this
objection by pointing to the ban on caste, at the core of Brown v. Board of Education,325 as a
principle that is sufficiently definite to provide a manageable standard for federal courts to
declare and enforce.326 As James E. Fleming has written,
[Chief Justice] Warren articulate[d] a powerful conception of the harm of segregation in
terms of an anti-caste principle of equal protection: “To separate [black school children]
from others of similar age and qualifications solely because of their race generates a feeling
of inferiority as to their status in the community that may affect their hearts and minds in a
way unlikely ever to be undone.” Therefore, Warren conclude[d], “[s]eparate educational
facilities are inherently unequal.”327
323

Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 STAN. L. REV. 730,
800 (2018).
324

411 U.S. 1 (1973). See also Melvin H. v. Atlanta Indep. Sch. Syst., No. 1:08-CV-1435, 2008 WL
11342510 (N.D. Ga. 2008) (discussing purported lack of manageable standards in suit by children
challenging the adequacy of education provided in Georgia “alternative” education programs for
“students who are suspended from regular classrooms”).
325

Bryan K. Fair, The Darker Face of Brown, the Promise and Reality of the Decision Remain
Unreconciled, 88 JUDICATURE 80, 82 (2004) (“Brown reaffirms Justice Harlan’s Anticaste declaration [in
his dissenting opinion in Plessy v. Ferguson”); Paul Dimond, Anti-Caste Principle. 30 WAYNE L. REV. 23
(1983) (“The school segregation cases eventually provided the most direct avenue for challenging the
Court’s early decisions embracing caste.”).
326

See Donald D. Judges, Bayonets for the Wounded: Constitutional Paradigms and Disadvantaged
Neighborhoods, 19 HASTINGS CONST. L.Q. 599, 702 (1992) (“Although a finding of caste-creating and
cast-perpetuating conditions rests in part on qualitative judgments about a combination of factors, the
standard of extreme dehumanization, powerlessness, and exclusion is nevertheless a manageable one for
courts.”).
327

James E. Fleming, Rewriting Brown, Resurrecting Plessy, 52 ST. LOUIS U.L. J. 1141, 1142 (2008),
citing Brown v. Board of Educ., 347 U.S. 483, 494, 495 (1954).

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No doubt the Court has moved away from this reading of Brown, substituting instead a version
of equality that ignores the institutional and informal structures of racial subordination and
blocks even voluntary efforts to end practices of racial containment.328 But as Plyler shows,329
the anti-caste principle remains an intact doctrine and provides a powerful potential basis for
abolishing carceral schools.330
The anti-caste principle points to an education right that affords more than minimally
sufficient public schooling, defined as one that provides the basic literacy presumed necessary
for democratic participation. But before discussing its shortcomings, we must acknowledge that
the minimally adequate education approach adopted by the Sixth Circuit carries an impressive
philosophical pedigree.
Beginning in the 1960s, Frank Michelman developed a “minimum welfare” theory of
equal protection. Michelman’s approach, which drew from the liberal philosophy of John
Rawls,331 responded to the problem of wealth deprivation, not racial discrimination. Under the

328

See, e.g., Cedric Merlin Powell, Justice Thomas, Brown, and Post-Racial Determinism, 53
WASHBURN L.J. 451, 477 (2014) (stating that “Justice Thomas and the Roberts Court would say that it is
time to move on: the formal signs of the state caste system have been removed and there is nothing to
remedy except our own obsession with securing artificial, race-based outcomes.”); Bryan K. Fair, Been in
the Storm Too Long, Without Redemption: What We Must Do Next, 25 A.S.U. L. REV. 121 (1997) (“One
reason we have lost so much ground is because the Court has returned to the definition of equality
captured in Plessy, while, at several turns, explicitly undermining the anti-caste meaning of Brown. We
cannot concede this interpretive ground; we need to define equality in a consistent, substantive way that
aids traditionally disfavored persons in their efforts to eliminate their caste.”).
329

Supra notes 291–293 and accompanying text.

330

We underscore that even in the absence of manageable standards, declaring the education right
would remain a viable judicial prospect given the “benefit to be achieved’ in terms of children’s
development and improved life changes. Vieth v. Jubelirer, 541 U.S. 267, 301 (2004).
331

JOHN RAWLS, A THEORY OF JUSTICE (1971); see Frank I. Michelman, In Pursuit of Constitutional
Welfare Rights: One View of Rawls’ Theory of Justice, 121 U. PA. L. REV. 962 (1973).

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minimum welfare theory of equal protection, the Constitution required fulfillment of “just
wants” that, in the aggregate, were said to constitute a justiciable “just minimum” entitlement
that courts should safeguard for the poor.332
Yet even by Rawls’ own terms, it is not clear that U.S. society satisfies the criteria for
application of his notion of justice. In later writings, Rawls acknowledged that his ideal theory of
justice did not address “serious problems arising from existing discrimination and distinctions
based on . . . race.”333 There is sharp disagreement about the relation of his theory of justice to
various programs for and theories of racial justice.334 Even leaving aside those first-order

332

Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor
Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969). Michelman’s account is the classic
argument for heightened constitutional protections for poor persons against exclusionary majoritarian
outcomes. Michelman explained that his theory reflected a moral intuition that the state should offer
“minimum protection against economic hazard,” and openly acknowledged that the proposed remedy lay
“more in provision than equalization.” Id. at 13. Economic hazard refers to instances where “persons have
important needs or interests which they are prevented from satisfying” due to resource constraints. Id. at
35 (emphasis added). For an overview of the minimum core, see Katharine G. Young, The Minimum Core
of Economic and Social Rights: A Concept in Search of Content, 33 YALE. J. INT’L L. 113 (2008).
333

JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 66 (Erin Kelly, ed., 2001). See Charles W.
Mills, Retrieving Rawls for Racial Justice? A Critique of Tommie Shelby, 1 CRIT. PHIL. OF RACE 1, 2
(2013) (discussing the “intellectual chasm between the worlds of the black American freed struggle for
justice and the white American academic philosophical community’s discussions of justice” as “nowhere
more clearly illustrated than in the centrality of racial justice as a theme to the former and its virtually
complete absence from the latter”). Conversely, critical race scholars generally “have said very little
about Rawls.” Sheila Foster, Race and Ethnicity, Rawls, Race, and Reason, 72 FORDHAM L. REV. 1715,
1716 (2004).
334

Some scholars have argued that racial antidiscrimination norms are compatible with his approach,
at least in terms of compensatory and not restorative justice. Compare Tommie Shelby, Race and Social
Justice: Rawlsian Considerations, 72 FORDHAM L. REV. 1697 (2004) (offering a Rawlsian approach to
achieving racial and arguing that the fair equality of opportunity principle could be adapted to “remove
many of the socioeconomic burdens that racial minorities presently shoulder because of the history of
racial injustice” and can “insure that their life prospects are not unfairly diminished by the economic
inequalities that have been created by a history of racism.”), with Mills, supra note 333. others have
claimed that a “Rawlsian constitution” would be incompatible with legislative affirmative action, but
supportive of reparations as a component of racial justice. See Martin D. Carcieri, Rawls and Reparations,
15 MICH. J. OF RACE & L. 267 (2010).

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questions, however, Rawls acknowledged that his ideal theory could be applied only to a
democratic society, and not “a caste, slave, or racist one.”335 In the non-ideal world, such as the
one that exists in the United States today, welfare rights, as Goodwin Liu has urged, must instead
be understood in the light of “the shared understandings of particular social goods,” taking into
account democratic commitments as expressed in laws and regulatory programs.336 The anticaste principle underscores that what constitutes “shared understandings” must include the views
of those who have been excluded from the construction of that understanding; the shared
understanding must acknowledge not only the value of education as a social good, but also the
power and history of that social good as used by dominant groups to subordinate those who are
and have been excluded from education’s purported benefits.337 Public schooling, from the time

335

Rawls, supra note 333, 21. See ELIZABETH ANDERSON, THE IMPERATIVE OF INTEGRATION (2010)
(arguing that racial justice is a matter of non-ideal theory).
336

Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 STANFORD L. REV. 203, 228 (2008).
A part of Michelman’s defense of the minimum core concept was to render the concept of welfare rights
justiciable, and that aim, as William Forbath has argued, led to his having too narrowly defined the core
and to ignored that in the American tradition, welfare rights require “more than a decent minimum of
food, shelter, and other material goods.” William E. Forbath, Constitutional Welfare Rights: A History,
Critique and Reconstruction, 49 FORDHAM L. REV. 1821, 1876 (2001); see also William E. Forbath, Not
So Simple Justice: Frank Michelman on Social Rights, 1969–Present, 39 TULSA L. REV. 597, 622 (2004)
(explaining that justiciability was the basis for Michelman’s seeking constitutional welfare rights in terms
of an insurance right rather than as a broader right of social citizenship). In response, see Frank I.
Michelman, Democracy-Based Resistance to a Constitutional Right of Social Citizenship, 69 FORDHAM
L. REV. 1893 (2001) (questioning the conflation of justiciability and narrowness of conception, and
predicting that the more expansive social citizenship right would be blocked by “democratic-based
resistance”).
337

Conversely, when the Court has blocked efforts to promote educational equality, it has deployed,
on occasion, instrumental denial of this history, which Naomi Murakawa calls “practiced fantasies of
racial innocence.” Naomi Murakawa, Racial Innocence: Law, Social Science, and the Unknowing of
Racism in the US Carceral State, 15 ANN. REV. L. & SOC. SCI. 473, 475 (2019) (“Racial innocence is the
dominant US epistemology, a way of knowing fueled by the desire for unknowing. . . . Ignorance is no
absence of knowledge; it is, rather, the cultivation of institutions, ideologies, and rhetorical mazes that
unwitness racism[.]”) (discussing Parents Involved in Community Schools v. Seattle, 551 U.S. 701
(2007)); see also GEORGE SHULMAN, AMERICAN PROPHECY: RACE AND REDEMPTION IN AMERICAN
POLITICAL CULTURE 134 (2008) (defining racial innocence as “partly, a denial of the reality of others and
a disclaiming of this refusal [to acknowledge]; and, partly, a denial of the past that constitutes our situated

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of slavery, has been wielded as an instrument of racial and class containment, used to perpetuate
subordination for invidious reasons of race and class. It is precisely this harm that the anti-caste
principle of the Fourteenth Amendment takes aim, and suggests that the application of ideal
theory as a basis for an education right would not be appropriate given history, tradition, and
current circumstances.
We further recognize another argument that would support the minimally adequate
education approach: that a judicial declaration of the education right should be narrow to account
for judicial limitations in effectuation of the right. What this amounts to, in our view, is an
important acknowledgement that the “gap” between judicial declaration and enforcement or
implementation needs to be filled not by the courts alone, but rather by others—including
mobilized communities pursuing the abolitionist project of dismantlement and transformation.
Courts cannot and should not, unilaterally, assume the responsibility of effectuating the
education right. However, as Gene Sperling has warned, “[t]o allow . . . remedial considerations
to trim rights is to allow the depth of past wrongs and majoritarian hostility or unwillingness to
bear remedial costs to be instrumental in narrowing present and future rights.”338
Indeed, experience suggests that defining a “positive” right—whether constitutional or
statutory—in terms of a minimum core or as minimal sufficiency tends to exert downward
hydraulic pressure on the further elaboration and construction of that right, at least when
implementation involves important question about race and poverty.339 We provide two

particularity.”); James Baldwin, The Fire Next Time (1963) (“It is not permissible that the authors of
devastation should also be innocent. It is the innocence which constitutes the crime.”).
338

Gene B. Sperling, Judicial Right Declaration and Entrenched Discrimination, 94 YALE L.J. 1741,
1742 (1987).
339

See David A. Super, Laboratories of Destitution: Democratic Experimentalism and the Failure of
Antipoverty Law, 157 U. PA. L. REV. 541, 597 (2008).

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examples, from the federal “food stamp” program and the statutory right to food assistance, and
from the experience of the South African Constitutional Court enforcing a constitutional right to
housing and medicine. Both, we submit, highlight the considerable dangers that can result from a
court’s defining a positive right in the most minimal and narrow terms.

1. Minimal Sufficiency and the Provision of Food in the United States
The United States Constitution does not guarantee a right to food assistance, even if an
individual is destitute and starving for reasons out of that person’s control.340 However, over the
years the federal government has developed programs to provide some food assistance to
indigent persons.341 Initially the federal government, like the states, limited assistance to the
distribution of surplus food—bitterly memorialized in The Autobiography of Malcolm X.342
During the 1960s, the United States shifted toward programs that use a market-based approach
that boosts the purchasing power of participating households to buy groceries.343
Originally enacted as the Food Stamp Program, and later renamed the Supplemental
Nutrition Assistance Program (SNAP), this program embodies the minimum core approach. It
provides targeted assistance to indigent households to enable them to purchase food in grocery

340

See Jesse Burgess, Let Them Eat Cake: Constitutional Rights to Food, 18 WILLAMETTE J. INT’L L.
& DISP. RESOL. 256 (2010).
341

For an overview of these programs, see Hershkoff & Loffredo, supra note 154, at 243–327.

342

MALCOLM X & ALEX HALEY, THE AUTOBIOGRAPHY OF MALCOM X AS TOLD TO ALEX HALEY 18
(1987) (“It seemed that everything to eat in our house was stamped Not To Be Sold. All Welfare food
bore this stamp to keep the recipients from selling it. It’s a wonder we didn’t come to think of Not To Be
Sold as a brand name.”).
343

For a history of the Food Stamp Program, see ARDITH L. MANEY, STILL HUNGRY AFTER ALL
THESE YEARS: FOOD ASSISTANCE POLICY FROM KENNEDY TO REAGAN (1989); see also JANET
POPPENDIECK, BREADLINES KNEE-DEEP IN WHEAT: FOOD ASSISTANCE IN THE GREAT DEPRESSION
(1986).

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stores. Rather than looking to Rawls or Michelman, SNAP draws from the Economy Food Plan
developed by Mollie Orshansky while at the U.S. Department of Agriculture and later the Social
Security Administration. Orshansky designed the Economy Food Plan based on food and other
consumption data in the 1955 Household Consumption Survey, and viewed food consumption
under the plan as a temporary and highly constrained expedient for “emergency use when funds
are low,” and in households that could spend “a considerable amount of [time on] home
preparation with little waste and . . . [had] skill in food shopping and preparation.”344 The current
poverty threshold consists of three times the cost of the food plan.
Food assistance to the needy continues to adhere to the basic parameters of the minimal
approach (set out in the Thrifty Food Plan). Yet the underlying basis of the Economy Food Plan
has long been known to be out of date and to understate even subsistence needs.345 On the one
hand, it is true that SNAP benefits reduce food insecurity for participating households,346 while
also supporting the agricultural economy, improving neighborhoods, and lifting families out of
poverty.347 But benefits average about $1.40 per person per meal and, not surprisingly, monthly

344

See Kenneth Hanson, Mollie Orshansky’s Strategy to Poverty Measurement as a Relationship
Between Household Food Expenditures and Economy Food Plan, 30 REV. OF AG. ECON. 572 (2008).
345

Rebecca M. Blank, Testimony: Why the United States Needs an Improved Measure of Poverty,
BROOKINGS INST. (July 17, 2008), available at https://www.brookings.edu/testimonies/why-the-unitedstates-needs-an-improved-measure-of-poverty/ (“While this methodology for calculating a poverty line
was fine in 1963, and was based on the best data available, it is seriously flawed in 2008. There is no
other economic statistic in use today that relies on 1955 data and methods developed in the early
1960s.”).
346

Caroline Radcliffe, Signe-Mary McKernan, and Sisi Zhang, How Much Does the Supplemental
Nutrition Assistance Program Reduce Food Insecurity?, 93(4) AM. J. AGRIC. ECON. 1082 (2011).
347

See U.S. Dep’t of Agriculture, Economic Research Service, Economic Linkages: Supplemental
Nutrition Assistance Program (SNAP) Linkages with the General Economy (2019), available at
https://www.ers.usda.gov/topics/food-nutrition-assistance/supplemental-nutrition-assistance-programsnap/economic-linkages/.

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benefits are known to run out within the first week of receipt given the actual cost of food.
Reports indicate that these food shortages have serious negative effects on children who are more
likely to face school discipline and earn lower test scores during the later parts of a SNAP
monthly cycle.348
Over the years, some legislators have sought to increase food assistance benefits by
replacing the Thrifty Food Plan as the basis for SNAP benefits.349 Notwithstanding SNAP’s
well-known benefits, legislators instead have diminished, rather than expanded, the program by
reducing eligibility. This diminution has largely been accomplished by extending coercive work
requirements already built into SNAP, which has been shown to have disparate effects by race.350
In particular, although white households make up the majority of SNAP recipients,351 negative
stereotypes of Black people, and especially of Black males, have had some implicit effect on the
policy discussion.352 President Reagan’s first Inaugural Address, attacking the legitimacy of the

348

See Steven Carlson, More Adequate SNAP Benefits Would Help Millions of Participants Afford
Food, Center on Budget and Policy Priorities (July 30, 2019), available at
https://www.cbpp.org/research/food-assistance/more-adequate-snap-benefits-would-help-millions-ofparticipants-better.
349

Such efforts include the Food Security Improvement Act or the Closing the Meal Gap Act. For a
summary of legislative developments, see Food Research & Action Center, SNAP/Farm Bill, available at
https://frac.org/action/snap-farm-bill.
350

See, e.g., Erin Brantley, Association of Work Requirements with Supplemental Nutrition Assistance
Program Participation by Race/Ethnicity and Disability Status, 2013-2017, JAMA NETWORK OPEN (June
26, 2020), available at https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2767673.
351

See Center on Budget and Policy Priorities, SNAP Helps Millions of African Americans (Feb. 26,
2018), available at https://www.cbpp.org/sites/default/files/atoms/files/3-2-17fa4.pdf (finding Black
people made up 26% of SNAP participants in 2016 based on available data).
352

See P.R. Lockhart, Republicans Say Race Isn’t a Factor in the Food Stamp Debate. Research
Suggests Otherwise., VOX (June 13, 2018), available at https://www.vox.com/policy-andpolitics/2018/6/13/17460362/race-food-stamps-snap-farm-bill-2018-republicans-welfare (reporting the
statement of Rep. David Scott (D-GA), who is Black, that ‘The image of able-bodied men not working
are African-American men in the minds—not in everybody’s minds, but there are unfortunately people
out there who have this mental disposition’”); Martha R. Mahoney, Segregation, Whiteness, and

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Food Stamp Program, relied on racist tropes, referring to a “‘strapping young buck’ [who]
bought T-bone steaks with food stamps.”353
To be sure, funding for food assistance has expanded significantly over the years: In
2018, the United States spent $68 billion on SNAP and additional food benefits such as free and
reduced-price breakfast, lunch, and snack programs for school-age children, assisting 40 million
low-income people.354 These programs bring unquestionable nutritional, social, and health
benefits to participants, but the amount of assistance continues to be pitched at what is needed on
a temporary, emergency basis, and does not meet nutritional need. Program rules also share an
unfortunate relationship with the carceral state (as, for example the SNAP program’s onerous
exclusions of persons who have had contact with the criminal law system355). Moreover, in
indirect ways, the programs bolster the system of racial capitalism, acting as a subsidy to service
and other low-wage industries that resist increasing hourly rates of pay for workers whose
poverty wages are supplemented by the government.356 The programs have lifted some recipients

Transformation, 143 U. PA. L. REV. 1659, 1683 (1995) (“Programs like public housing, Medicaid,
welfare, and food stamps have become publicly “raced” and endowed with a racial character (marked as
nonwhite) in white perception and in much political discourse despite the fact that whites are at least a
plurality of the beneficiaries.”).
353

LeLand Ware and David C. Wilson, Jim Crow on the “Down Low”: Subtle Racial Appeals in
Presidential Campaigns, 24 ST. JOHN’S J. OF LEGAL COMMENT. 299, 311 (2009) (noting that while
“[r]ace was not mentioned, but the connotation was clear”—Reagan referred to an “able-bodied African
American who was taking advantage of the system.”).
354

Center on Budget and Policy Priorities, Policy Basics: The Supplemental Nutrition Assistance
Program (SNAP), available at https://www.cbpp.org/research/food-assistance/policy-basics-thesupplemental-nutrition-assistance-program-snap.
355

Hershkoff & Loffredo, supra note 154, at 254 (discussing rules governing disqualification for
SNAP assistance because of certain criminal convictions).
356

See Candace Kovack-Fleischer, Food Stamps, Unjust Enrichment, and Minimum Wage, 35 LAW &
INEQ. 1, 21 (2017) (“The retailers' profitability is therefore in part a result of the government subsidies the
retailers receive through food stamp payments to their employees, a program designed to help the poor.”).

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out of poverty, but the legislature’s minimum core approach has not catalyzed or transformed
into a more humane food policy.357 Instead, SNAP benefits come at a significant price to
recipients, who by program design are under constant suspicion of fraud, expected to comply
with coercive and complicated regulations, and made to feel stigmatized and devalued, even as
they continue to suffer from food insecurity.358 Today, more than 37 million people in the United
States are food insecure.359

2. Minimal Sufficiency and the Provision of Housing
The South African Constitutional Court, influenced by developments in the international
human rights regime, famously experimented with judicial enforcement of a positive right to a
subsistence floor. Shortly before South Africa drafted its post-Apartheid Constitution, the United
Nations Committee on Economic and Social Rights became the first international body to
recognize a minimum core by articulating a state duty to provide “minimum essential levels” of
food, health care, shelter, and housing.360 The Committee’s notion of minimum essential levels
was a true “subsistence floor”—what Samuel Moyn described as “a minimum within a

357

But see Edward Rubin, The Affordable Care Act, the Constitutional Meaning of Statutes, and the
Emerging Doctrine of Positive Constitutional Rights, 53 WM. & MARY L. REV. 1639, 1708 (2012)
(suggesting that because the federal government has enacted food assistance program, recognizing that it
is “unacceptable” to allow “citizens to starve,” then the “courts can recognize” a right to subsistence
“without creating administrative difficulties”).
358

See Tianna Gaines-Turner, Joanna Cruz Simmons, and Mariana Chilton, Recommendations from
SNAP Participations to Improve Wages and End Stigma, AM. J. PUB. HEALTH (Dec. 2019), available at
https://ajph.aphapublications.org/doi/epub/10.2105/AJPH.2019.305362.
359

America at Hunger’s Edge, N.Y. TIMES MAGAZINE (Sept. 2, 2020), available at
https://www.nytimes.com/interactive/2020/09/02/magazine/food-insecurity-hunger-us.html (“In the
pandemic economy, nearly one in eight households doesn’t have enough to eat.”).
360
UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of
States Parties’ Obligations under art. 2(1), E/1991/23, ¶ 10 (14 December 1990); see also Acevedo
Buendia et al v. Peru, Series C No. 198, ¶ 102, Inter-American Court of Human Rights (1 July 2009)
(embracing this standard).

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minimum.”361 In other words, although the right to housing or food might sweep more broadly—
and take longer to fulfill—than the “minimum core,” States bore “obligations which are of
immediate effect” to provide goods or services sufficient to satisfy that core.362 In a notable
departure from the norm for human rights advisory bodies, the Committee called for judicial
enforcement of an immediate right to a minimum core.363
South Africa’s post-Apartheid Constitutional Court partially took up the call.364 In the
leading case known as Grootboom, the Court recognized, in principle, that a minimum core right
to housing may eventually be identified, but declined to define the content of the right or hold
that the government had failed to fulfill it.365 Still, it found that the government had failed to
make “reasonable” accommodations for “categories of people in desperate need."366 On this
basis, the Court struck down a housing development program but left open for political decision-

361

SAMUEL MOYN, NOT ENOUGH: HUMAN RIGHTS IN AN UNEQUAL WORLD 200 (2018) [hereafter
NOT ENOUGH].
362

General Comment 3, supra note 360, at ¶ 1.

363

Id. at ¶ 5.

364

This section focuses on South Africa as an illustrative example because South Africa’s experience
with enforcement minimum levels of social protection through constitutional litigation is perhaps the
“most famous” example—and in any event, it is one that Michelman and other U.S. proponents of social
minimum protections looked for inspiration. NOT ENOUGH, supra note 361, at 199–200. Other countries
that have developed variations on the minimum core concept include. See, e.g., Ingrid Leijten, The
German Right to an Existenzminimum, Human Dignity, and the Possibility of Minimum Core
Socioeconomic Rights Protection, 16 GERMAN L.J. 23 (2015 (Germany); Nicholas Wasonga Orago, The
Place of the “Minimum Core Approach” in the Realisation of the Entrenched Socio-Economic Rights in
the 2010 Kenyan Constitution, 59 J. AFR. L. 237, 245 (2015) (Kenya).
365

Government of the Republic of South Africa v. Grootboom, 2001 (1) SA 46, ¶¶ 29–33 (CC) (S.
Afr.). The court found it did not have sufficient information to determine what the content of the right
would be—in part because the Government had so far made “no provision . . . for relief.” Id. ¶ 69.
366

Id.

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making precisely what level of provision would be “reasonable.”367 Since Grootboom, the
concept of safeguarding “basic necessities” or “minimum levels” of public provision has featured
prominently in the Constitutional Court’s case law.368
The promise and limits of the Constitutional Court’s approach is well illustrated by the
case of Treatment Action Campaign (TAC) and its legacy in South Africa’s socio-economic
rights jurisprudence.369 TAC concerned the government’s failure to provide anti-retroviral (ARV)
medication to prevent mother-to-child transmission of HIV amidst one of the worst HIV/AIDS
epidemics in the world.370 As told by one of TAC’s founders, the campaign for a program to stop
mother-to-child transmission “galvanize[d] a social movement that was made up of people who
were predominantly poor, black, and living with HIV” to “mobilize around material needs, rather
than general and abstract complaints of inequality.”371 The combined mobilization and litigation
strategy paid off. The Constitutional Court found that the Government “fail[ed] to address the
needs of mothers and their newborn children who do not have access” to the limited sites where
the ARV medication was available and ordered the Government make the drug widely in the

367

Id. at ¶ 99. For a broader discussion of the South African Constitutional Court’s jurisprudence, see
Karin Lehmann, In Defense of the Constitutional Court: Litigating Socio-Economic Rights and the Myth
of the Minimum Core, 22 AM. U. INT’L L. REV. 163, 165 (2006).
368

Formally, the court has refused to define the content of a minimum core in any given area, but
regularly makes reference to a requirement to provide a minimum level of necessities. See, e.g., Khosa v.
Minister of Social Development, 2004 (6) SA 505 (CC) ¶ 52 (S. Afr.) ("A society must seek to ensure that
the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom
and equality are foundational.").
369

Minister of Health v. Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC) (S. Afr.).

370

Mark Heywood, South Africa’s Treatment Action Campaign: Combining Law and Social
Mobilization to Realize the Right to Health, 1(1) J. Hum. Rts. Practice 14, 19–20 (2009) [hereafter Law
and Social Mobilization].
371

Id. at 20.

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public health system, invoking the notion of entitlement to a “basic level” of healthcare
provision.372
Despite hopes that the case and strategy could herald a broader redistributive turn in
constitutional law and politics, TAC represented the high-water mark, rather than a catalyzing
starting point, for securing socio-economic rights under South Africa’s Constitution. Seven years
after the court victory, TAC’s founders continued to insist on an understanding of the case and
surrounding developments as fundamentally “redistributive,” arguing that it could serve as a
“model” for campaigns in education, housing, and other areas.373 Today, however, even the
greatest proponents of the TAC “model” of popular mobilization around a minimum
constitutional entitlement admit that the social and political formations they relied on are “almost
completely powerless” in the face of today’s “inequalities.”374 The Constitutional Court’s
experiment with socio-economic rights enforcement ultimately proved better tailored to
“includ[ing] groups into the social and economic status quo” who were previously entirely

372

TAC, supra, at ¶ 28 (“No one should be condemned to a life below the basic level of dignified
human existence. The very notion of individual rights presupposes that anyone in that position should be
able to obtain relief from a court.”). Although the court eschewed formal reliance on the “minimum core”
concept, the reasoning effectively recognized a floor of provision that was required, given certain
conditions. See generally Mark Heywood, Preventing Mother-to-Child HIV Transmission in South
Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the
Minister of Health, 19 S. AFR. J. HUM. RTS. 278 (2003).
373

Law and Social Mobilization, supra note 370, at 23–30.

374

Mark Heywood, The Transformative Power of Civil Society in South Africa: An Activist’s
Perspective on Innovative Forms of Organizing and Rights-Based Practices, 17:2 GLOBALIZATIONS 294,
297 (2020). Heywood blames the left for “ignor[ing]” the “potential” of their approach. Id. at 296.
Developments have supported the more conservative initial assessments of the South African cases. See,
e.g., CASS SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 234 (2002) (“What the South
African Constitutional Court has basically done is to adopt an administrative law model of socioeconomic
rights.”).

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excluded, rather than “fundamentally disrupt[ing] or transform[ing] that status quo.”375
The South African experience with enforcement of “minimum core” raises concerns
about the incompatibility of such an approach with the emancipatory aspirations of abolition
constitutionalism. The court’s focus on basic necessities is indicative of a modest agenda
inconsistent with the pursuit of systemic changes that implicate redistributive questions and, as
Katharine Young has warned, “misses the important connections between dignity and human
flourishing.”376 In fact, the approach may justify institutional arrangements that further
subordinate, leading, in the words of South African political activist Jeremy Cronin, to a “twofaced developmental state,” in which:
[o]n the one hand, a “first world” state, with relatively well-resourced departments
and state-owned enterprises whose principal mission is to remove market
constraints[ and] lower[] the cost of doing business (for business). On the other
hand, a “caring” but woefully under-resourced and overwhelmed “third world”
state, focused on delivery to the poor.377
Further, insofar as inequality is “heightened by—or indeed constituted by—waiting,” the
very minimalism of the core itself entrenches inequality.378 Under the mainstream international
human rights interpretation of the minimum core, “the obligations left out of the ‘core’ are those

375

Catherine Albertyn, Contested Substantive Equality in the South African Constitution: Beyond
Social Inclusion Towards Systemic Justice, S. AFR. J. HUM RTS 441, 459 (2018).
376

Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of
Content, 33 YALE J. INT’L L. 113, 130–31 (2008).
377

Jeremy Cronin, The Dangers of Two-Faced Development, GLOBE & MAIL (June 1, 2007),
available at https://mg.co.za/article/2007-06-01-the-dangers-of-twofaced-development/.
378

Katherine G. Young, Waiting for Rights: Progressive Realization and Lost Time, in THE FUTURE
G. Young, ed., 2019). The tragic consequences of
waiting are illustrated by the afterlife of the Grootboom case itself. Despite her victory in court, Irene
Grootboom was still homeless and impoverished when she died eight years after the Constitutional
Court’s decision.
OF ECONOMIC AND SOCIAL RIGHTS 654, 666 (Katherine

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with lesser priority.”379 Although it is widely recognized that securing social and economic rights
requires mobilization from organizers,380 the minimalism of the core has historically exerted a
demobilizing effect on transformative movements.381 Nor is this critique of the core approach
simply a critique of judicialization: as with the United States’ experience with food assistance,
even when basic minima are secured through politics—such as with the African National
Congress’s heralded campaign pledge to provide Johannesburg residents with a “free basic
amount of water” and other utilities—the results have been disappointing.382 In South Africa and
elsewhere, provision for a “social minima” has “proven compatible with the expansion rather
than the reduction of material inequality.”383

C. The Anti-Caste Principle and Federalism
379

Id. at 667; see also Theunis Roux, Understanding Grootboom-A Response to Cass R. Sunstein, 12
CONST. F. 41, 46–47 (2002) (suggesting a priority-setting approach for determining "the temporal order in
which government chooses to meet competing social needs," guided by the minimum core concept
articulated by the Committee); John Tasioulas, Minimum Core Obligations: Human Rights in the Here
and Now, World Bank Research Paper (Oct. 2017).
380

Angelina Fisher, “Minimum Core” and the “Right to Education”, World Bank Research Paper 33
(Oct. 2017) (“[C]itizen demand is critical to the successful the outcome. Even where a human right is
unequivocally recognized and implemented at a national level, the downward implementation of such
policies often fails where citizens are not aware of and are not empowered to demand what is due to
them.”) (emphasis in original).
381

Patrick Bond, Constitutionalism as a Barrier to the Resolution of Widespread Community
Rebellions in South Africa, 41:3 POLITIKON 461, 463, 472–73 (2014) (listing examples of activists
associated with major constitutional litigation campaigns in South Africa) [hereafter Constitutionalism as
a Barrier].
382

Id. at 473–74 (explaining that “for many poor people there was no meaningful difference to their
average monthly bills even after the first free 6000 litres” because of compensating price increases in the
second “block”). Conversely, social movements have in some cases successfully used litigation on issues
related to housing and settlements. See Abahlali Basemjondolo Movement SA et al. v. Premier of
KwaZulu-Natal and Others (1874/08) [2009] ZAKZHC 1 (striking down a 2007 law in the province of
KwaZulu-Natal, which made it easier for authorities to evict informal settlement dwellers). Our critique
targets the cramped moral vision of the core, not the strategy of litigation.
383

NOT ENOUGH, supra note 361, at 66.

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Our emphasis on a federal education right as a right to quality education also draws
support from federalism. This argument may seem surprising. Conventionally, federalism is
raised as a barrier to recognizing even a basic federal right to education, on the theory that states
and localities ought to have autonomy in the ways in which they provide public schooling.384
Additional normative justification for self-governance at the local level stems from the view that
there should be political space for states to function as “laboratories of experimentation.”385
However, this argument looks at federalism from only one end of the telescope. It does not ask,
and so leaves unanswered, how state and local experimentation in turn might affect federal
constitutional interpretation.
Students of federalism have begun to examine and, in some contexts, to see the value of
having the Supreme Court look to, and learn from, state constitutional law in its interpretation of
the U.S. Constitution. Thus, for example, Joseph Blocher asks, “If states have a constitutionally
guaranteed role as laboratories for constitutional innovation, why does the Court discard the lab
results?”386 In areas in which the federal and state constitutions overlap—for example, in
criminal procedure—the Court already has undertaken what Blocher calls “reverse

384

Jennifer Hochschild & Nathan Scovronick, The American Dream and the Public Schools 5 (2003)
((“Americans want neighborhood schools, decentralized decision making, and democratic control. . . .
They simply will not permit distant politicians or experts in a centralized civil service to make educational
decisions.”);
385

See Rodriguez, 411 U.S. at 50 (“Mr. Justice Brandeis identified as one of the peculiar strengths of
our form of government each State's freedom to ‘serve as a laboratory; and try novel social and economic
experiments.’ No area of social concern stands to profit more from a multiplicity of viewpoints and from
a diversity of approaches than does public education.”) (internal citation omitted).
386

Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. CAL. L. REV. 323, 326
(2011).

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incorporation.”387 In these areas, evidence of local practice has provided the federal system with
important information pertinent to constitutional interpretation.388 Similarly, the First
Amendment is a doctrinal space in which the Court routinely looks to “community values” in
determining the appropriate meaning of the expressive right,389 and state definitions of property
and liberty likewise inform the federal conception of due process.390
Notwithstanding that these pockets of reverse incorporation appear in fields where the
federal and state constitutional provisions overlap, two features make public schooling a
plausible candidate for reverse incorporation of this type. As the conventional arguments against
recognizing a federal right—lack of competence and democratic legitimacy—make clear, it is a
field in which the Court has exercised restraint out of deference to expertise and federalism.391 In
the half century since the Supreme Court’s decision in Rodriguez, state courts have been active
players in federalist experiments, and they have developed robust principles regarding a right to
education. Indeed, state courts have advanced a conception of a public schooling right—as the
discussion of the Rose and Hunt litigations made clear392—that goes far beyond a right to mere
literacy. The approach taken in this line of cases has obvious resonance with Amartya Sen’s and

387

Id. at 372 (discussing the Court’s reliance on state judicial practice in the area of criminal
procedure in shaping the content of Fourth Amendment rights).
388

See Brandon L. Garrett, Local Evidence in Constitutional Interpretation, 104 CORNELL L. REV.
855, 860 (2019) (justifying “robust use of local evidence” to “define” the federal constitutional right).
389

See generally Robert C. Post, Community and the First Amendment, 29 ARIZ. ST. L.J. 473 (1997).

390

See generally Martha I. Morgan, Fundamental State Rights: A New Basis for Strict Scrutiny in
Federal Equal Protection Review, 17 GA. L. REV. 77 (1982).
391

See Blocher, supra note 386, at 375 (stating that “criminal procedure is one of those areas in which
the underlying values of reverse incorporation—respect for federalism and state expertise, for example—
are particularly salient”).
392

See supra notes 50–65 and accompanying text.

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Martha Nussbaum’s theory of capabilities, which forges a link between material welfare and
human liberty.393 Under Sen’s approach, capabilities are “substantive freedoms” that enable the
achievement of “functionings,” which are “beings and doings” essential to human flourishing
(such as being educated, being fed and housed, voting, working, etc.).394 Education has been at
the “heart” of the “capabilities approach” since its inception.395 The approach taken by state
courts in the Rose line of cases is consistent with capabilities theorists who favor ensuring that
every person an opportunity to flourish in society—an aspiration that goes to the core of the anticaste principle.396
Establishing a federal right to a quality education would build upon these state
experiments, whereas pitching the right at too low a level of sufficiency would suppress their
results. Judge Jeffrey S. Sutton, in his discussion of state school funding challenges, argued that
the failure of a federal constitutional right in Rodriguez created political and legal pressure in the
states to step into the gap.397 He asked whether these reform movements, developed by state

393

Amartya Sen, Justice: Means Versus Freedoms, 19 PHIL. & PUB. AFF. 111, 118 (1990)
(“Capability reflects a person’s freedom to choose between alternative lives”); see also MARTHA C.
NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT 78–80 (2000) (listing ten capabilities that all
democracies should promote because of their necessity to human flourishing: “(1) life; (2) bodily health;
(3) bodily integrity; (4) senses, imagination, and thought; (5) emotions; (6) practical reason; (7)
affiliation; (8) other species; (9) play; (10) control over one's environment”).
394

See AMARTYA SEN, DEVELOPMENT AS FREEDOM 18, 70–86 (1999); Amartya Sen, Well-Being,
Agency and Freedom: The Dewey Lectures 1984, 82 J. PHIL. 169, 201-03 (1985).
395

MARTHA C. NUSSBAUM, CREATING CAPABILITIES: THE HUMAN DEVELOPMENT APPROACH 152
(2011); see also AMARTYA SEN, INEQUALITY REEXAMINED 44 (1992) (listing education as one of “a
relatively small number of centrally important” beings and doings).
396

Rosalind Dixon & Martha C. Nussbaum, Children's Rights and a Capabilities Approach: The
Question of Special Priority, 97 CORNELL L. REV. 549, 554 (2012) (“[Capabilities approach] is generally
committed to the equal protection of rights for all up to a certain minimum threshold.”).
397

See JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN
CONSTITUTIONAL LAW (2018). The idea of states “stepping into the breach” draws from Justice

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legislatures and ordered by state supreme courts, would have happened had the Rodriguez Court
announced a right to education. Emphasizing that the definition of such a right would have been
“diluted” by the Court’s sense of “institutional constraints,” Judge Sutton referred to a
“federalism discount to [the Court’s] articulation of the constitutional right and remedy.”398
Given this pattern of state court decision-making, federalism now should provide a bonus to the
federal definition of an education right, just as state court decisions boosted the Court’s
recognition of a right to counsel under the Sixth Amendment in light of state practice.399 The
capabilities-oriented education rights recognized under state constitutions highlight that to be
adequate, the education afforded to Black, Brown, and poor students—as to all students—must
ensure an equal chance at achieving the capacities essential to human flourishing and to
eliminate caste.
D. The Liberty-Based Right to Quality Education and the Broader Abolitionist Project
In this section, we continue with the theme of implementation, with an eye towards
efforts at social mobilization. We do not presume to put forward anything approaching a
comprehensive plan for the abolition we propose. For too long Black, Brown, and poor young
people and their families have been locked out of political decisions affecting their futures. We
recognize that any abolitionist project must move forward in a manner that promotes, rather than

Brennan’s germinal article, William J. Brennan, Jr., State Constitutions and the Protection of Individual
Rights, 90 HARV. L. REV. 489 (1977).
398

Sutton, supra note 397, at 214. See Goodwin Liu, State Courts and Constitutional Structure, 128
YALE L.J. 1304, 1314 (2019) (discussing this feature of Judge Sutton’s argument).
399

See Blocher, supra note 386, at 374 (discussing case law).

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undermines, self-determination.400 However, a brief survey of salient features of abolitionist
organizing, and of organizing against carceralism in schools, reveals significant alignments
between the demands of popular movements and potential advocacy for the federal right we
describe.401 Indeed, a conception of freedom aligned with our notion of liberty has long been
central to the Black feminist tradition402—a tradition that is a core ideological influence on the
contemporary abolitionist movement.403 We thus turn to a discussion of the role of rights and
litigation in this abolitionist project, and in so doing, touch on principles that might inform
constitutional meaning and guide legislative actions.
In recent decades, the literature on courts and social change has shown renewed interest
in the role of social movements in the process of spurring legal and political transformations.404

400

Marbre Stahly-Butts & Amna A. Akbar, Transformative Reforms, Abolitionists Demands,
STANFORD J. C.R.-C.L. (forthcoming) (draft on file with author) [hereafter Abolitionist Demands] (listing
as one of the “elements for transformative reforms that advance an abolitionist horizon” that “the reform
builds and shifts power into the hands of those directly impacted, who are often Black, brown, working
class, and poor”).
401

For an argument for the importance of such alignment, see Amna Akbar, Sameer Ashar, and
Jocelyn Simonson, Movement Visions for a Renewed Left Legalism, L. & POL. ECON. BLOG (May 3,
2019), available at https://lpeproject.org/blog/movement-visions-for-a-renewed-left-legalism/ (“[W]e
believe a left political agenda must be grounded in solidarities with social movement and left
organizations, largely outside of formal legal and elite academic spaces.”).
402

BELL HOOKS, AIN’T I A WOMAN: BLACK WOMEN AND FEMINISM 117 (1981) (defining freedom as
“positive social equality that grants all humans the opportunity to shape their destinies in the most healthy
and communally productive way.”). For an application to education, see BELL HOOKS, TEACHING TO
TRANSGRESS: EDUCATION AS THE PRACTICE OF FREEDOM 4 (1994) (describing the difference between
“the difference between education as the practice of freedom and education that merely strives to
reinforce domination.”).
403

Center for the Study of Race, Politics, and Culture, Angela Y. Davis at the University of
Chicago—Feminism and Abolition: Theories and Practices for the Twenty-First Century, YOUTUBE
(May 10, 2013), https://youtu.be/IKb99K3AEaA (describing the emergence of radical women of color
feminism and its relationship to abolitionist organizing); see also ANGELA DAVIS, GINA DENT, BETH
RICHIE, AND ERICA MEINERS, ABOLITION. FEMINISM. NOW. (forthcoming 2021).
404

Jocelyn Simonson, The Place of "The People" in Criminal Procedure, 119 COLUM. L. REV. 249,
289 (2019) (“[P]opular participation need not be mediated through representatives, but can and should
also spring up through direct forms of participation and contestation.”); Amna A. Akbar, Law's Exposure:

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Scholars have shed light on the relationship between movements and legal change with concepts
such as “demosprudence,”405 “popular constitutionalism,”406 and “community
constitutionalism.”407 Demosprudence, for instance, describes a mechanism through which
groups that traditionally have been contained as legal and political outsiders take actions that
disrupt—and ultimately transform—constitutional meaning.408 The demosprudential process is
one in which “mobilized constituencies . . . challenge basic constitutive understandings of justice
in our democracy,”409 and in so doing, spur jurisprudential developments.410

The Movement and the Legal Academy, 65 J. LEGAL EDUC. 352 (2015); Gwendolyn M. Leachman, From
Protest to Perry: How Litigation Shaped the LGBT Movement’s Agenda, 47 U.C. DAVIS L. REV. 1667
(2014); TOMIKO BROWN-NAGIN, COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF THE
CIVIL RIGHTS MOVEMENT (2011); CAUSE LAWYERS AND SOCIAL MOVEMENTS (Austin Sarat and Stuart
Scheingold, Eds., 2006); JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT
RIGHTS (2005); MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND
THE STRUGGLE FOR RACIAL EQUALITY (2004); CATHERINE ALBISTON, The Dark Side Of Litigation As A
Social Movement Strategy, 96 IOWA L. REV. BULL. 61 (2011); Sameer Ashar, Public Interest Lawyers and
Resistance Movements, 95 CALIF. L. REV. 1879 (2007); Jack M. Balkin & Reva B. Siegel, Principles,
Practices, and Social Movements, 154 U. PA. L. REV. 927 (2006); Jack M. Balkin, How Social
Movements Change (or Fail to Change) the Constitution: The Case of the New Departure, 39 SUFFOLK
U. L. REV. 27 (2005); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and
Constitutional Change: The Case of the de Facto ERA, 94 CALIF. L. REV. 1323, 1331 (2006) (“ERA
debate guided the Court. . .”); Kenneth W. Mack, Rethinking Civil Rights Lawyering and Politics in the
Era Before Brown, 115 YALE L.J. 256 (2005); William N. Eskridge, Some Effects of Identity-Based
Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002).
405

Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and
Social Movements, 123 YALE L.J. 2740 (2014); see also Lani Guinier, Demosprudence Through Dissent,
122 HARV. L. REV. 4, 15–16 (2008) (conceptualizing demosprudence as “legal practices that inform and
are informed by the wisdom of the people,” which are “democracy-enhancing”).
406

See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM
AND JUDICIAL REVIEW (2004).
407

Yxta Maya Murray, The Takings Clause of Boyle Heights, 43 N.Y.U. REV. L. & SOC. CHANGE
109, 141 (2018) (documenting “a community constitutionalism . . . based on alterative perceptions of
property rights expressed by on-the-ground protesters”).
408

Guinier & Torres, supra note 405, at 2749–58.

409

Id. at 2760.

410

Id.

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Without suggesting that the call to recognize a liberty-based right to quality education
emerges directly from “mobilized constituencies,” we note that our proposal aligns closely with
the abolitionist project as conceived by some of its leading movement proponents.411 Materially,
the remedy for violations of this federal right would necessarily track the prominent movement
demand of “invest-divest,”412 which calls for divestment from policing in all forms, and
investment in life-affirming resources necessary to thrive.413 In the education context, the
Movement 4 Black Lives (M4BL), an umbrella group of over 150 self-identified abolitionist
organizations,414 envisions a federal constitutional amendment establishing a right to

411

For other existing recommendations in the literature, see, e.g., Deborah Fowler, Madison Sloan, &
Dr. Ellen Stone, Making the Case for a School and Neighborhood Desegregation Approach to
Deconstructing the School-to-Prison Pipeline, 42 U. ARK. LITTLE ROCK L. REV. 723 (2020) (recognizing
the relation between school segregation and the school-to-prison pipeline); David M. Fox, Breaking the
Geographic Barrier Removing Residency Requirements from California Public School Enrollment, 52
U.C. DAVIS L. REV. ONLINE 297 (2019) (recommending legislative and administrative solutions including
open enrollment and tax revision); Kiel, supra note 289, at 641 (describing the transfer option from
“failing” schools under the No Child Left Behind act and the lack of meaningful options when “district
sovereignty” remain intact); see also Paul Butler, The System Is Working the Way It Is Supposed to: The
Limits of Criminal Justice Reform, 104 GEO. L.J. 1419, 1475–78 (2016) (advocating for a Third
Reconstruction). For a broad review of “[l]egal scholarship[’s] . . . reckoning with the centrality of the
violence of policing to the United States,” see generally Amna Akbar, An Abolitionist Horizon for
(Police) Reform, 108 CAL. L. REV. 101, 108–20 (forthcoming 2020).
412

Abolitionist Demands, supra note 400, at *10 (“Invest-divest focuses attention on the size and
scale of the criminal system, makes a call to divest from and shrink that system, and brings attention to
alternative modes of social response”). The Movement 4 Black Lives popularized the “Invest-Divest”
demand in 2015, although the concept is attributed to Eddie Ellis. AirGo Radio, Episode 253, The
Abolition Suite Vol. 2: Mariame Kaba, (July 19, 2020), available at
https://airgoradio.com/airgo/2020/7/7/episode-253-the-abolition-suite-vol-2-mariame-kaba (“When I hear
folks from the Movement 4 Black Lives . . . coming up in 2015 saying ‘invest-divest,’ I smile because I
know that’s Eddie Ellis. . . . He made it possible for us to think about invest-divest.”); see also Eddie
Ellis, Prison Reform Visionary, OUR TIME PRESS (Aug. 5, 2019), available at
https://www.ourtimepress.com/eddie-ellis-prison-reform-visionary/.
413

MOVEMENT 4 BLACK LIVES, INVEST-DIVEST (2020) (“We demand investments in the education,
health and safety of Black people, instead of investments in the criminalizing, caging, and harming of
Black people”), available at https://m4bl.org/policy-platforms/invest-divest/; see also generally
MOVEMENT 4 BLACK LIVES, VISION FOR BLACK LIVES: 2020 POLICY FRAMEWORK (2020), available at
https://m4bl.org/policy-platforms/.

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education.415 The content of the proposed amendment differs sharply from the “minimally
adequate education” or basic literacy right contemplated by federal courts to date,416 resembling
much more closely a right of the type we propose:
A constitutional amendment would also provide a chance to clearly articulate the necessary
components of a quality education, which include the right to: a free education for all, wrap
around services, a social worker for every 40 students, free health services (including
reproductive body autonomy and dental care), a curriculum that acknowledges and
addresses youth’s material and cultural needs, physical activity and recreation, high quality
food, free daycare, freedom from unwarranted search, seizure or arrest . . . . The
amendment would also acknowledge the right of students to respect and dignity.417
Similar demands are reflected in the BREATHE Act—federal legislation also championed by
M4BL—which has earned support from Rep. Ayanna Pressley and Rep. Rashida Tlaib.418 The
education provisions of the BREATHE Act would prohibit federal law enforcement from being
within 1,000 feet of any public or private schools,419 and would incentivize states and localities

414

MOVEMENT 4 BLACK LIVES, ABOUT US (“We are Abolitionist. We believe that prisons, police and
all other institutions that inflict violence on Black people must be abolished and replaced by institutions
that value and affirm the flourishing of Black lives.”), available at https://m4bl.org/about-us/; see also id.
(“We believe and understand that Black people will never achieve liberation under the current global
racialized capitalist system.”).
415

Invest-Divest, supra note 413, at 4.

416

See supra notes 40, 244, and 257 and accompanying text.
MOVEMENT 4 BLACK LIVES, EDUCATION AMENDMENT POLICY BRIEF, available at
https://m4bl.org/wp-content/uploads/2020/05/Education-Amendment-Policy-Brief.pdf (emphasis added).
417

418

Selena Hill, Reps. Ayanna Pressley and Rashida Tlaib Announce the BREATH Act, Calling for
Defunding Police, Reparations, and Universal Basic Income, BLACK ENTERPRISE (July 10, 2020)
available at https://www.blackenterprise.com/reps-ayanna-pressley-and-rashida-tlaib-announce-thebreathe-act-calling-for-defunding-police-reparations-and-universal-basic-income/.
419

M4BL, THE BREATHE ACT: FEDERAL BILL OUTLINE (unpublished draft) (on file with authors).
Although most policing is a local matter, scholars have documented how federal agenda-setting through
bureaucracies such as the Law Enforcement Assistance Administration dramatically altered the nature of
state and local carceral systems. See generally HINTON, WAR ON CRIME, supra note 175.

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to: remove police and school resource officers from schools,420 close youth jails,421 alter school
funding formulas for funding equity,422 repair and renovate school facilities,423 increase access to
adult education for incarcerated and formerly incarcerated persons,424 provide additional
services,425 and develop curricula on the political, economic, and social legacies of colonialism,
genocide against indigenous people, and slavery.426 Numerous other popular movement demands
for education reform either embrace the invest-divest framework or mirror its substance, as
reflected in slogans such as “counselors, not cops.”427
Similarly, fulfillment of the federal constitutional right we describe would require
divesting from carceral systems within public schools, and investing in curricula, learning

420

FEDERAL BILL OUTLINE, supra note 419.

421

M4BL, THE BREATHE ACT: BILL SUMMARY 7 (July 2020), available at
https://breatheact.org/wp-content/uploads/2020/07/The-BREATHE-Act-PDF_FINAL3-1.pdf.
422

Id. at 7.

423

Id. at 8

424

Id.

425

Id. at 7–8.

426

Id. at 7.

427

See, e.g., ADVANCEMENT PROJECT ET AL., POLICE IN SCHOOLS ARE NOT THE ANSWER TO
SCHOOL SHOOTINGS 5 (2018), available at https://advancementproject.org/wpcontent/uploads/2018/03/Police-In-Schools-2018-FINAL.pdf (demanding divestment from
“criminalization infrastructure,” and investment in “psychologists, therapists, counselors, social workers,
and nurses[.]”); We Came to Learn: A Call to Action for Police-Free Schools, ADVANCEMENT PROJECT,
available at https://advancementproject.org/wecametolearn/; DIGNITY IN SCHOOLS CAMPAIGN, WHY
COUNSELORS, NOT COPS? (2018), http://dignityinschools.org/wpcontent/uploads/2018/10/WhyCounselorsNotCops.pdf; Angela Helm, Counselors, Not Cops: New
Yorkers Protest Millions Proposed for School Safety Budget, Saying Money Fuels School-to-Prison
Pipeline, ROOT (Mar. 21, 2019), available at https://www.theroot.com/counselors-not-cops-new-yorkersprotest-millions-prop-1833464478; see also generally DREAM DEFENDERS, DEFUND POLICE, REBUILD
OUR COMMUNITIES (2020), available at
https://secure.everyaction.com/p/PN6aQpREDU6OccefBqxPmQ2.

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materials, facilities, and services.428 In this way, our project aligns with, and offers another tool
to, abolitionist organizing led by communities and young people combatting confinement in
carceral schools.429 Implementing such a right would not, standing alone, fulfill the maximalist
vision advanced by movement demands. Crucially, however, we believe that it neither
undermines that maximalist vision, nor legitimizes the subordinating systems that popular
movements seek to dismantle.430 Moreover, in contrast with a right to basic literacy, our
proposed federal right connects closely to the calls of organizers mobilizing to defund policing in
their schools and to fund other services that contribute to human flourishing.431 As such, it is

428

Obviously, fulfilling the right to quality public schooling requires investments in the elements
necessary for a good education. But it could also require reducing the liberty restrictions—including but
not limited to policing—students experience during the school day. Cf. Gary B., 957 F.3d at 642 (finding
that, to assess a liberty-based claim, the court would need evidence about, inter alia, the “restrictions on
[students’] liberty throughout the typical school day.”). As discussed supra notes 179–216 and
accompanying text, these liberty restrictions within carceral schools are extensive and extremely harmful.
429

Cf. Abolitionist Demands, supra note 400, at *10 (“Transformative demands come out of
campaigns, mass movements, and organizations that center and are run by people directly impacted . . . .
Indeed, they must be the ones diagnosing problems and proposing and implementing solutions, engaging
in self-governance.”); see also supra note 226.
430

Abolitionist movements generally oppose reforms that seek to humanize or reduce bias in carceral
processes. They argue that such reforms legitimize carceral systems, and entrench carceral infrastructure
by investing more resources into that infrastructure. See generally SURVIVED & PUNISHED NEW YORK,
PRESERVING PUNISHMENT POWER: A GRASSROOTS ABOLITIONIST ASSESSMENT OF NEW YORK
REFORMS (2020), available at https://bit.ly/NYAbolitionistAssessment (proposing a series of questions to
ask of any reform to determine whether it is consistent with abolitionist principles, including “Does it . . .
legitimize or expand the carceral system we’re trying to dismantle,” criticizing, among other reforms, a
bill intended to make prisons safer for trans people, and “Does it undermine efforts to organize and
mobilize the most affected for ongoing struggle?”). One of the authors is a member of Survived &
Punished NY and contributed to this abolitionist assessment. For an example of such a reform effort
addressing carceralism in schools in a manner that would result in more resources flowing into carceral
systems (in the form of training) and overall legitimization, see NEW YORK CIVIL LIBERTIES UNION,
MODEL MEMORANDUM OF UNDERSTANDING FOR SCHOOL RESOURCE OFFICERS, available at
https://www.nyclu.org/sites/default/files/field_documents/mou_recommendations_for_schools_and_polic
e_0.pdf (providing for training on bias, cultural sensitivity, disability rights, crisis intervention, and deescalation, as well as for removal for use of force or acts of bias).
431

See generally #COPSOUTCPS, A REPORT ON WHY IT’S TIME FOR CHICAGO PUBLIC SCHOOLS TO
DIVEST FROM THE CHICAGO POLICE DEPARTMENT (June 2020), available at https://copsoutcps.com/wpcontent/uploads/2020/06/CopsOutCPS-Report-6.16.20-1.pdf (calling for the $33 million invested in

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complementary to, and compatible with, abolitionist movement demands. Indeed, a liberty-based
right to quality education, as outlined here, fulfills the criteria of a “transformative reform that
advance[s] an abolitionist horizon,” as described by Amna Akbar and Marbre Stahly-Butts:
(1) the reform shrinks the criminal legal system; (2) the reform relies on modes of political,
economic, social organization that contradict prevailing arrangements, and gesture at new
possibilities; (3) the reform builds and shifts power into the hands of those directly
impacted, who are often Black, brown, working class, and poor; (4) the reform
acknowledges and repairs past harm; and (5) the reform improves material conditions of
directly impacted people.432
Whether pursued through legislation, constitutional amendment, or litigation to recognize
a liberty-based constitutional right to quality public education, abolishing carceral schools aligns
with this movement-defined vision of transformation.
Conclusion
In this article, we have focused on the project of abolishing public schools that rely on
punitive and carceral approaches to the education of Black, Brown, and poor children. Our
project—like that of prison abolition—is not just a project of dismantlement.433 Rather, if the law
is to play a role in children securing the equal liberty they need to grow and flourish, it must, as
abolitionist organizer Mariame Kaba says, facilitate “building up of new ways of . . . relating
with each other.”434 To be sure, today’s abolitionists—as was true of those in the 1850s—can

school resource officers to be put towards counselors, social/emotional learning, and other services and
programs that promote safety and development).
432

Abolitionist Demands, supra note 400, at *4–*5.

433

See Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. REV. 1156, 116768 (2015) (“Prison abolition . . . is an aspirational ethical, institutional, and political framework that aims
to fundamentally reconceptualize security and collective social life, rather than simply a plan to tear down
prison walls.”).
434

AirGo Radio, Episode 29—Mariame Kaba, (Feb. 2, 2016), available at
https://soundcloud.com/airgoradio/ep-29-mariame-kaba.

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find much in constitutional law that enables racial oppression.435 But in this article we have tried
to show that the Constitution also can provide a framework for creative demands of equality and
liberty. Although lawyers’ role in the movement for abolition is peripheral, legal argument can
support new ideas about constitutional meaning —ideas that respond to the historical and current
experience of Black, Brown, and poor children facing confinement in carceral public schools.
We hope that this article contributes toward efforts seeking to achieve a better “society in the
making.”436

435

See, e.g., Abolitionist Horizon, supra note 411, at 109 (“The Supreme Court’s Fourth Amendment
jurisprudence facilitates, rather than constrains, police violence.”).
436

Roberts, supra note 8, at 122. See also Amna A. Akbar, Toward a Radical Imagination of Law, 93
N.Y.U. L. REV. 405, 479 (2018) (describing abolition constitutionalism as “reconstructive and visionary,
pushing for a radical reimagination of the state and the law that serves it. It is here that legal scholars may
have the most to learn from, and the most to contribute, if we imagine collaboratively with these
movements.”).

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